-•**

;.

A N

HISTORICAL
DISSERTATION

CONCERNING THE

A N T I Q^U I T Y

O F T H E

ENGLISH

CONSTITUTION.

By GILBERT STUART, L L. D.

Si Ion -yeaf lire V admirable outrage de Tacite fur les
moeurs des Germains, on <verra que c'eft d'eux que les A nglois
ont tire Videe de leur gou<ve rne ment politiqt.e . Ce beau fyft erne
a etc trou*ve dans les boist Mo N r E s QTJ i E u .

The SECOND EDITION, con-efted.

LONDON:

Printed for T. CADELL, Succeflbr to Mr. MILLAR, in the
Strand; and A. KINCAJD, and J. BELL, Edinburgh*

MDCCLXX,

APR 2 8*970

131

1 1 10

T O

THE RIGHT' HONOURABLE

WILLIAM LORD MANSFIELD,

LORD CHIEF JUSTICE OF ENGLAND.

My Lo RD*

T BEG that your lordfhip will per-
•^ mit me to adorn this perform-
ance by infcribing it to your name ;
and that you will excufe an ambi-
tion to which I am led fo naturally
by my fubjed-

A 2 Raifed

iv DEDICATION.

Raifed by your abilities to that
illuftrious ftation which holds a
middle place between the King and
the fubjedt, you teach government
to retain its force, and the people
to refpedl it. You perceive, with
the happieft difcernment, what be-
longs to prerogative and to liberty :

the former you allow not to grow
into tyranny, nor the latter to de-
generate into licentioufnefs.

The guardian of a conftitution,
the moft friendly to the rights of
men, and of laws, which, though

the

DEDICATION. v

the moft perfed in Europe, are
every day improving, you enjoy a
Situation the moft refpedable, and
which affords a full fcope to your
capacity and talents.

Imprefled with veneration for
your office and chara&er, I fhould
never have prefumed to prefent
this treatife to your lordfhip, if I
thought, that it inculcated any fen-
timents unfavourable to the free-
dom of our government, or which

a citizen fhould blufh to acknow-
ledge. The execution of it may,
A 3 indeed,

iv DEDICATION.

indeed, be defe&ive; the inten-
tion, I truft, is honourable.

I am, with the inoft perfect ref-
ped,

My lord,

Your lordfhip's
moft obedient
and moft humble fervant,

Londojn,
Jan. 1770.

GILBERT STUART.

ADVERTISEMENT.

THERE is no fubject more inter-
efting to a native of Great Bri-
tain, and none that leads to difcoveries
more curious or important, than an
inquiry concerning the antiquity of our
laws and conftkution. Our hiftorians,
however, have very feldom attended to
it. They defcribe the conduct of ge-
nerals, the valour of armies, and the
confequences of victory and defeat ; but
the manners and way of thinking of our
anceftors they have neglected, as un-
worthy of remark, or incapable of or-
nament.

Our antiquaries have difplayed much

critical knowledge, but the fpirit of cu-

ftoms and of laws efcapes their penetra-

A 4 tion.

vlii ADVERTISEMENT.

tion. They often throw together their
materials without arrangement ; they
are often unable to reafon from them ;
and, forgetting that the human mind
advances in a progrefs, they afcribe to
rude ages the ideas and fentimeqts of
their own times.

The foundation and principles of the
Anglo-Saxon conftitution, are to be,
found, it is thought, in the inftitutions
and manners of the ancient Germans ;
And it is in thefe that the author of the
following differtation has endeavoured
to inveftigate them. Nations renounce
not all at once the ideas and ufages to
which they have been accuftomed ; and
though fome differences may be intro-
duced by a conqueft, or a change of fi^
tuation, yet the fabrics of policy that
are then erected muft bear fome refem-
blance to former eftablifhments.

ADVERTISEMENT. ix

A peculiarity, which he had occafion
to obferve concerning property among
the Germans, fuggefted to him the lead-
ing fentiments that he has employed in
this eflay. From the conceptions of our
anceftors in relation to this article, from
the fpirit of independence, and the con-
nection of Prince and Retainer, he has
been enabled (if he does not deceive
himfelf) to exhibit in a new light that
fyftem of laws, and thofe conftitutions,
which the conquerors of Rome eftablifh-
ed in the countries where they fettled.

But though fome things that are new,
and perhaps not unimportant, may oc-
cur in thefe papers, yet will there be
much neceffity for the candour and in-
dulgence of the reader. The fubjecl; is
of great dignity ; a dark antiquity has
removed it from remark ; and many wri-
ters of character have added to its ob-

fcurity

x ADVERTISEMENT,

fcurity by their glofles and conje&ures.
The author is confcious of the little
force and ability with which he has
been able to conceive and to exprefs his
ientiments ; and he delivers them to the
public with fears and wifhes.

Edinburgh^ April 1768,

CONTENTS.

PART I.

Of the ancient inhabitants of
Germany and Britain.

SECTION I.

A general defcription of the Germans^

Page i

SECT. II.

The fame fubjett continued^ - 19

SECT. III.

Of property among the Germans^ - 25

SECT.

xii CONTENTS.

SECT, IV.

Of the political inftitutions of the Ger-
mans, Page 37

SECT. V.

Of the inhabitants of Britain^ and the
Saxon conquejty 49

PART II.

Of the ftate of land in the Ger-
man and Gothic kingdoms.

SECTION I.

Of the origin and progrefs of the feudal
polity^ Page 62

SECT.

CONTENTS. xiii

SECT. II.

Of the origin and decline of the feudal
ceremonies and incidents, Page 88

SECT. IIL

Of allodial pojjejfionsj - - - in

SECT. IV.

An application of the foregoing theory
to the hi/lory of England, - - 1 20

t

PART IIL

Of the orders of men in Germany
and England,

SEC-

t

xiv CONTENTS.

SECTION I.

Of the diftincJion of ranks, Page 126

SECT. II.

Of the German and Saxon kings , 132

SECT. III.

Of the German and Saxon nobility, r 55

SECT. IV.

Of allodial proprietors, ceorles, and
'villeins, 175"

S E C T. V.
Of the German ftie/li w druids, 187

SECT.

CONTENTS. xv

SECT. VI.

Of the Saxon clergy, - ~ Page 196

PART IV.

Of the judicial arrangements in
Germany and England.

SECTION I.

Of the origin of jujlice, Page 216

SECT. II.

Of courts, - - - 222

The fame fubjefl continued, 246

S E C T. IV.

Of the forms of procedure, + 256

PART

xvi CONTENTS.
PART V.

Of the great council, or parliament,
in Germany and England.

SECTION I.

Of the Commons in Germany, Page 272

SECT. II.

Of the Commons in England, - sBi

CONCLUSION, - - 290

A N
HISTORICAL DISSERTATION

Concerning the ANTIQUITY of the
ENGLISH CONSTITUTION.

PART I.

Of the Ancient Inhabitants of Ger-
many and Britain.

SECTION I,

A general defcrlftwn of the Germans.

NO circumftance in the hiftory
of mankind is more (hiking
than the progrefs of manners.
When hunting and fifhing are the me*
thods which men employ to maintain
themfelves, fociety confifts of a few in-
dividuals, whom their neceffities have
taught to unite. A little experience in-
forms them of the places moft favour-
able for game at particular feafons ; and
B thefe,

2 Of the Ancient Inhabitants Part I.

thefe, rendered commodious by the e-
redion of huts, acquire an additional
value by being frequently vifited. When
fixed to a certain territory, their fub-
fiftence becomes lefs precarious, their
views are extended, and improvements
are made. The prey which at firfl they
furprized by dexterity, or bore down
by force, they fecure by art. Animals
are tamed, and the pafloral way of life
commences. In this age of manners,
they p^fture their cattle on the grounds
occurring to them; prefent pofTeffion
being the title by which they occupy
fields in which none acknowledge a
property. Convenience increafmg with
the means of life, population advances,
and the art of agriculture is difco-
vered.

The general fpirit of the age of
agriculture is very different from that of
thofe which preceded it. When men
live by game, they confine their atten-
tion, and divide their numbers, to pro-
cure it. In an age, however, when ad-
i vantages

Se£t. i. of Germany and Britain. 3

vantages refult from their union, they
herd into bodies, and fubject themfelves
to laws. Tribes are then formed, and,
fenfible of their ftrength and refources,
turn their views around them. Emula-
tion, and the pride of fuperiority, in-
duce them to contend with each other :
wars begin ; and men carry to the high-
eft pitch the virtues of valour, and love
of liberty.

At this ftate of fociety the ancient
Germans had arrived ; and, unattraded
by all thofe objedts which are the care
of a polifhed nation, the extent of ter-
ritory, the -improvement of arts, or the
enlargement of commerce, they placed
at once their bufmefs and amufement
in fcenes of death and deftrudlion. A-
inidft the heat and alarm of battles,
they fought that renown, which, conli-
dered alone as honourable, was the end
their education confulted, and their am-
bition afpired to. The chace, the paff-
ing of rivers loaded with arms, the
bearing of cold, fatigue, and hunger,
B 2 were

4 Of the Ancient Inhabitants Part I.

were the hard leflbns of their infancy
and youth ; arms, bloodfhed, and de-
vaftation, the firft objects (i) to which
they were accuftomed. Hardened in
their bodies, bold and magnanimous in
their tempers, they were conducted, at
the military age, to the public aflem-
blies of their country ; and there, ha-
ving dedicated their lives to military
glory, were adorned (2) with the Ihield
and the framea, and admitted to an in-
timacy and level with all the warriors

(1) Ceefar de Bell. Gall. lib. 6. f. 21. Vita omnis in
venationibus, atque in ftudiis rei militaris confiftit : ab
parvulis labori ac duritia; ftudent. 'Tacit, de Mor.
Germ. c. 4. Tokrare frigora atque inediam coelo fo-
love afTueverunt. Mela, lib. 3. <•. 3. Maximo frigore
nudi agunt, antequam puberes fint : et longiflima apud

cos pueritia eft. Nandi non patientia tantum illis,

ftudium etiam eft. Tacit, bi/l. lib. q. c. 12. Erat et do-
mi deleftus eque?, praecipuo nandi ftudio, arma equof-
que retinens, integris turmis, Rhenum perrumpere.

(2) Tacit, de M.-G. c. 13. Sed arma fumere non ante
cuiquara mods, quam civitas fufTedurum probaverit.
Turn in ipfo concilio vel principum aliquis, vel pater,
vel propinquup, fcuto frameaque juvenem ornant. Ha?c
apud illos toga, hie primus juventas honos : ante hoc
domus pars vidcntur, mox reipublics.

of

Seft. i. of Germany and Britain. j

of their tribe. The rank conferred on
them, the emulation of the adts of their
anceftors, which on this occafion would
be fet before them, the honour of their
nation, the rivalfhip of their equals, the
hopes of renown, all confpired to inflame
their minds with the moft generous ar-
dour to excel.

In this critical feafon, when their
minds beat higher! with the profpeds of
glory, the cuftom of their country ran-
ged them under the banners (3) of fome
diftinguifhed hero, who led them forth
to fignalize their impetuous courage by

(3) Cafar de E. G. lib. 6. c. 23. Civitatibus ma-
xima laus eft, quam latiffimas circum fe vaftatis finibus
folitudines habere. Hoc proprium virtutis exiftimant,
expulfos agris finitimos cedere, neque quemquam pro-
pe audere confiftere : fimul hoc fe fore tutiores arbi-

trantur, repentinse incurfionis timore fublato. La-

trocinia nullam habent infamiam, quae extra fines cu-
jufque civitatis fiunt ; atque ea juventutis exercendse,
ac defidiae minuends caufa fieri predicant. Mela,
lib. 3. c. 3. Bella cum finitimis gerunt, caufas eo-
rum ex libidine acccrfunt : neque imperitandi prola-
tandique quse poffident, (nam ne ilia quidem enixe co-
lunt), fed ut circa ipfos quae jacent vafta fint. Jus in
viribus habent, adeo ut ne latrocinii quidem pudeat,— .

B 3 com-

6 Of the Ancient Inhabitants Part I.

committing fpoil and robbery on the
adjoining tribes. Here, the ambitious
youth, learning obedience to command-
ers, tempered their ferocity ; here, prac-
tifed in fuccefs, or growri wife from
defeat, were formed thofe generals to
whom a free and independent people
could fubmit their fortunes. Spreading
defolation and folitude around the terri-
tories of their nation, they extended its
renown and their own ; and a mutual
confidence being produced betwixt fol-
diers and commanders, they became
fitted for more illuftrious exploits.

Every mark of honour, and tribute of
praife, which a rude people can invent,
were lavifhed on the memorable few,
who, braving fuperior dangers, had ri-
fen to the higheft estimation. To be
moft refpe&ed at entertainments, to
drink the ofteneft, to have their acts re-
cited (4) to an applauding multitude, to
receive the greateft portions of territory,

to

(4) Me!a, hi. 2, c. i. Inter epulas quot quifque

interfecerit

Se£t i. (f Germany and Britain, J:

to fpeak firft in the public councils of
the ftate, to be furrounded (5) with the
greateft number of wives ; thefe were
the diftincYions they attained. Nor
was their fame confined to their own
tribe : foreign ambaffadors (6) crouded
to give them honours and prefents.
But to be conftantly attended by a cho-
feft band (7) of retainers, who, forget-
ful

interfecerit referre, laetijTima et frequentiffima mentio :
binifque poculis, qui plurimos retulere, perpotant. Is
inter Auchetas honos prscipuus eft. See alfo Herodot*
lib. i. & 4,

(5) <Tacit. ek M.G. c. IT. — prout nobilitas, prout

decus bellorum, prout facundia eft, audiuntur, /^/,

r. 1 8«— Singulis uxoribus contenti funt, exceptis admo-
dum paucis, qui non libidine, fed ob nobilitatcrn, pla-
rimis nuptiis ambi'afltur.

(6) IJ.c. 13. Nee folum in fua gente cuique, fed
apud finitimas quoque civitates id nomen, ea gloria elt, fi
numero ac virtute comitatus emineat ; expetuntur enira
legationibus, et muneribus ornantur.- — Id. c. 15. Gau-
dentpr^ecipue finitimarum gentium donis, quaj nonmodo
•a fingulis, fed publice mittuntur: ele&i equi, magna ar-
nia, phalerse, torquefque.

(7) Id. c. 13. Magna et comkum acmulatio, qui-
fcus primus apud principeni fuum locus : et principum,

B 4 cui

8 Of the Ancient Inhabitants Part I.

ful of every other tie, were attached to
their intereft with the moft unfhakerr fi-
delity, was their chief dignity. Thefe
were the guardians of their perfons and
reputation, and fhared equally their
profperity and toils. Hati a chieftain
met death in the field, his followers,
thinking it mean (8) to furvive him,
and feek glory under another mafter,
turned their fwords againft themfelves,
making it a point of honour to give that
kft proof of their attachment and affec-
tion.

The greateft infamy, on the contrary,
was connected with cowardice. A peo-

cm plurimi et acerrimi comites. Haec dignitas, h«e vi»
res, magno Temper eleftorum juvenum globo circum-
dari, in pace decus, in bello przefidium. Ctefar, lib. 6,
t. i$. — eorum ut quifque eft genere copiifque amplifli-
mus, ita plurimos circum fe amba&os clientefque ha-
bet,

(8) Cafar^lib. 3. r. 22. — Soldurios adpellant : quo-
rum hsec eft ccnditio, uti omnibus in vita commodis una
cum his fruantur, quorum fe amicitiae dediderint : fi
quid iis per vim accidat, aut cundem cafum una ferant,
aut fibi mortem confcifcant. Neque adhuc hominum
nemoria repertus eft quifquam, qui, eo interfedlo, cujus
fe amicitiss devovifTet, mori recufaret.

Sect. I. of Germany and Britain. g

pie to whom nothing appeared, valua-
ble but the military virtues, to whofe
intereft nothing was more prejudicial
than, the want of refolution, and to
whom every art and fcience which add
convenience and embellishment to life,
were unknown, could not but efteem it
as the greateft crime. Arraigned. before
their civil tribunal by the public magi-
fhate, the timorous and unwarlike, co-
vered with fhame, and ' glowing with
confufion in the prefence of fo many
illuflrious warriors, were doomed to the
moft inglorious death, as a burden (9)
and nuifance to the ftate.

Nor was it a fmall incitement to their
valour, that their armies confifted of fa-
milies and relations, who confederated
into particular bodies. For the force,
not only of natural affection, but the
defects even of civil government in thofe
early ages, linked individuals in the clo-

(9) *I'acit. de M. G. c. 12. Licet apud concilium accu-
fare quoque, et difcrimen capitis intendere. Diflin&io
poenarum ex deli&o. Proditores et transfugas ar&oribus
fufpendunt ; ignavos, et imbelles, et corpore infames,
cceao ac palude, inje&a infuper crate, mergunt.

feft

JO Of the Ancient Inhabitants Parti.

feft union, for thepurpofes of defence and
revenge. Their wives too, and children
(10), following to the camp, furround-
ed them in waggons : fo that the lofs
of a battle involved in it the lofs of eve-
ry thing they valued. Impelled by the
tnoft powerful motives, no courage was
more impetuous than that of the Ger-
mans ; no enemy more terrible.

But the circumftances which fhow,
and perhaps indulged moil their fero-
cious and independent character, were
the religious fentiments they entertain-
ed. On this head it may be proper to
fay fomething of the qualifications in ti-
tling to their paradife> and of its (u)

pleafures.

The

(10) Tadt.de M. G. e. 7. Quodque praecipuum fortitu-
dinis mcitamentum eft, non cafus, necfortuita congloba-
tio turmam aatcuneum facit, fed familiae et propinquita-
tes, et in proximo pignora : unde feminarum ululatus au-
diri, unde vagitus infantium. C<rfar, lib. i.f. 51. — O-
mnerti aciem fuam rhedis et carris circumdederunt ; ne
qua fpes in fuga relinqueretur. Eo mulieres impofue-
runt, —

(n) The reader who would be fully informed on
tliis fubjeft, may confult the Edda IJland. ; Sax.
Grant, lib. I . & 2. ; Bartbotin. lie Cauf. Contemp. a

Dan.

Sect, i. of Germany and Britain. 1 1

The free-born, if they fell by the
fword, were to be admitted to the hall
of Odin, the feat of the blefled. Slaves,
(12) unlefs they had voluntarily killed
themfelves from the intention of accom-
panying their matters, were entirely ex-
cluded from it. Nor had thofe (13)
who died of age or difeafe any claim to
that privilege. Had a celebrated war-
rior fallen in battle, or put himfelf to
death in the gaiety and exultation of his
fpirit, his friends often flew themfelves
from an ambition to attend him ; it be-
ing accounted moft glorious to go to O-

Dan. Mort. lib. I. c. 4. et lib. 2. f. 7. fc? 10. ; Kejjler,
Antiq. Seleft. Septent. et Celt. c. 2. and Pelloutier, Hi-
ftoire des Celtes, torn. 2.

(12) Nonhumileobfcurumve genus, non funera plebis
Pluto rapit, vilefque animas, fed fata potentum
Implicat, et claris complet Phlegethonta figuris.

Saxo Gram. lib. 2.

(13) Hence it was faid of the Cimbri, and it is appli-
cable to all the German nations, "Cimbri lasti perire ia
bello, in morbo cum lamentis j" Paul* Diac. Hift. Mlfc,

u. 5.

din

1 2 Of the Ancient Inhabitants Part I.

din in a croud. Even the women (14)
were for ever to be fhut out from happi-
nefs, if they mounted not the piles,
and were confumed with the bodies of
their hufbands. Odin himfelf came
forth to meet thofe who had died nobly,
or deputed his virgins (15) to that pur-
pofe. In proportion to the number
and dignity of thofe flain by a hero,
was the honour of his reception and
treatment ; for all thofe who had funk
under his prowefs, whether kings or
nobles, were to acl; as his flaves and at-
tendants. To what a height muft the

(14) Mela, lib. 2. c. z. Ne feminis quidem fegnis eft
Animus. Super mortnorum virorum corpora interfici ii-
jijulque fepeliri, votum eximium habent : et quia plures
ilinul fingulis nuptae funt, cujus id fie decus, apud judica-
tures magno certamine affedant. Moribus datur, dlque
inaxime l<etum, cum in hoc contenditur, vincere. Mce-
rent alize vocibus, et cum acerbiffimis planclibus efferunf.
Cicero, Yufcul. Difput. lib. 5. f. 27. Mulicres vcro in In-
clia, cum eft cujufvis earum vir mortous, in certamen
judiciumque veniunt, quam plurimum il!e dilexerit ; plu-
res enim fingulis folent efle nupt^. Quie eft viftrix, ea-
iata, profequentibus fuis, una cum viro in rogum impo^
: ilia vida mcefta difcedit.

The Faltyri* : See Bartholinus, as above citc<?,

virtues

Sefl:. i. of Germany and Britain. 13

virtues of valour and love of liberty,
have prevailed in thofe nations !

Swine's flefh was the food with which
they regaled themfelves in this blifsful
region : ale or mead, from the fkulls
of their enemies, was their delicious
beverage : and a total oblivion of paft
misfortunes allowed them the fulleft en-
joyment of thefe pleafures ; pleafures,
fuggefted by the intemperance, and paf-
fion of revenge, infeparable from the
ftate of the barbarian. To drink wine,
and (16) to know what pafled on the
earth, were the prerogatives of Odin.
When not employed in feafting, they
exercifed themfelves in combat. The
•ualballa, or hall, had 550 gates, and
out of each 800 heroes might fally to
the place of adion, where they ambi-

(16) The manner in which Odin was fuppofed to re-
ceive his intelligence is extraordinary : " Corvi duo e-
jus infidentes humeris, in aures ip(i fufurrant crania quoe
vident vel audiunt. Hi vocantur Hugin cogitatio, et Mu-
ninn memoria. Hos primo diluculo emittit Odinus, ut
totum pervolent mundam, et circum tempus prandii re-
vertantur ; inde de multis certior redditur ;'' Edda Ijland.
34. ap. Rudbeck, Atlant. torn. 2. p. 552.

• tiouflv

14 Of the Ancient Inhabitants Part L

tioufly emulated the exploits of their
paft lives. And the flam in thefe en-
counters, being immediately reanimated
by magical incantation, battles, fought
without hurt, were renewed without
number. Such, they imagined, were
the pleafures of the happy ! So natural
is it for a rude people to fancy, that the
joys (17) which they loved when alive,
fhould be their reward after death.

When attending to thefe matters, and
to the form of government of the Ger-

(17) The Laplanders, (<vid. Scbeffsr. LapponJ, and
other barbarous nations, are fo convinced of this notion,
that they bury his bow and arrows with the defundh
How beautifully does the pencil of Virgil illuftrate this
thought, in his defcription of Elyfium !

Pars in gramineis exercent membra palaeftris ;
Contendunt ludo, et fulva ludtantur arena :
Pars pedibus plaudunt choreas, et carmina dicunt,
*#«#****
*** «****

Stant terra defixa? haftse, paflimque foluti
Per campum pafcuntur equi. quse gratia curruum
Armorumque fuit vivis, qua; cura nitentis
I'afcere eqoos, eadein fequitur tellure repoftos.

JEmid. lib. 6.

Seel:. I. of Germany and Britain. 15

mans, one ceafes to (18) wonder at the
encomiums which ancient authors have
paid to their valour. The Romans had
never attacked an enemy which oppo-
fed them with more finnnefs, or redu-
ced their armies to greater extremities*
With every other people they contended
for dominion or glory: with the Ger-
mans they fought for fafety. The moft
illuftrious commanders, with legions in-
ured to war, and pra&ifed in difcipline,

(18) Seneca, lib. i. de Ira, c: n. Germanis quid eft
animofius ? quid ad incurfura acrius ? quid armorum cu-
pidius ? quibus innafcuntur, innutriunturque; quorum
unica illis cura eft, in alia negligentibus. Quid indura-
tius ad omnem patientiam ? ut quibus magna ex parte
non tegumenta corporum provifa funt, non luffugia ad-
verfus perpetuum coeli rigorem. Mela, lib. 3. c, 3. — Im-
manes funs animis atque corpoiibus, et ad infitam ferita-
tern vafte utraque exercenr, bellando anirnos, corpora
adfuetudine laborum. Quintzlianus, dedam. de Cimlris :
•^-Nec minus animorum immanitate, quam corporum bel-
luis fuis proximi. Ftorus, lib. z. c. 4. — Animi ferarum,
corpora plus quam humana erant. And Lucau, li&. i.

—. Certe populi, quos defpicit arclos,

Felices errore fuo, quos ille timorum
Maximus, haud urget leti metus ; inde ruendi
In ferrum mens prona viris, animseque capaces
Mortis, et ignavum rediturse parcere.vitae,

were

16 Of the Ancient Inhabitants Part I,

were unequally matched with bands of
heroes, who, defpifmg every appearance
of danger, and every hope of life,
fought only an honourable death. I ap-
peal (19) to the ftruggles of Marius in
Italy, to thofe of Caefar in Gaul, and
thofe of Drufus, Tiberius, and Germa-
nicus, in Germany. I appeal to the ex-

(19) Tacitus, deM. G. c. 37. gives the following fhort
abftraft of German hiftory : " Sexcentefimum et quadra-
gefimum annum urbs noftra agebat, cum primurn Cimbro-
rum 'audita funt arma, Csecilio Metello ac Papirio Car-
bone cofT. Ex quo fi ad alterum Imperatoris Trajarii
confulatum computemus, ducenti ferme et decem anni
colliguntur. tamdiu Germania vincitur. Medio tam longi
aevifpatio, multa invicem damna NonSamnis, non Pceni,
non Hifpanias, G allisve, ne Parthi quidem fepius admonue-
re ; quippe regno Arfacis acrior eft Germanorum libertas.
Quid enim aliud nobis quam caedem Craffi, amiffo et ipfe
Pacoro, infra Ventidium dejedtus oriens objecerit ? At Ger-
mani Carbone, et Caflio, et Scauro Anrelio, et Servilio
Csepione, 1VJ. quoque Manlio fufis vel captis, quinqae
fimul confulareis exercitus popuio Romano; Varum tref-
que cum eo legiones etiam Csfari abftulerunt. Nee im-
pune C. Marius in Italia, divus Julius in Gallia, Drufus,
ac Nero, et Germanicus, in (uis eos fedibus perculerunt.
Mox ingentes C. Csefaris minx in ludibrium verfa?. Inde
otium, donee occafione difcordiasnoftra^et civilium armo-
rum, expugnatis legionuro hibernis, "etiam Gallias afFec-
tavere : ac rurfus pulfi inde, proximis temporibus trium-
phrtti magi^ quam vifti funi»"

ample

I. of Germany and Britain, 17

ample of the Romans ; who, at a time
when their power was higheft, infrin-
ged their conftitution from the dread of
thefe barbarians, making it a law, that
the priefts (20) and fuperannuated fhould
not be exempted from bearing arms
in the event of a German or Gaulic
tumult.

What feems moft remarkable, even
fuperftition, which at all times, but
more efpecially in rude and ignorant
ages, takes fo durable a hold of the hu-
man mind, had not force to make them
think with refped of their deities. So
ftrong was their martial fpirit and inde-
pendence ! Some German nations told
Csefar (21), that they were inferior only
to the Suevi, " to whom even the im-
mortal gods were unequal." And
a warrior in Saxo (22) fcruples not to

challenge

(20) Plutarch, in vit. Marcel, et Camil.

(21) Cafary lib. 4. c. 7. — Sefe unis Sucvis concedere;
quibus ne dii quidem immortales pares efie poffint : —

(22) Et mine ille ubi fit, qui vulgo dicitur Othin
Armipotens, UDO Temper contentus ocello ?

C Si

i8 Of the Ancient Inhabitants Part I.

challenge his fupreme deity to combat.
Animated by example, and dif eded
by the inftitutions and religion (rf his
country, the German turned the whole
power of his mind, to overcome thofe
terrors which are felt fo naturally at the
thoughts of diflblution, and, filled at
the fame time with the higheft notions
of liberty and independence, was ca-
pable of ads of the moft defperate va-
lour : while in polilhed times (23) men

ftirred

Si potero horrendam Friggae fpeclare marhum,
Quamtumcunque albo crypeo lit ted us, et altum
Fleclat equum, Letbra nequaquam fofpes abibit ;
Fas eft belligerum bello profternere divum*

Saxo Gram. lib. 2.

(23) There is an elegant pafiage in Tully, which I
am inclined to tranfcrfbe, as it illu-ftrates this argument :
" Atque in primis meditemur illud, uthaecpatiehtia dolo-
rum, quam fspe jam aninu intentions dixi efle firmandam,
in omni genere fe asquabilem prasbeat. Saepe enim mul-
ti, qui aut propter viclorise cupiditatem, aut propter glo-
riae, aut etiam ut ju, fuum et libertatem tenerent, vulne-
ta exceperunt fortiter et tulerunt, iidem emiffa contention
dolorem morbi ferre non poffbnt^ Neque enim ilium
quern facile tulerant, ratione aut fapientia tolerant, fed
ftudio potius et gloria. Itaque barbari quidam et im-
wanes ferro decertare acerrime potot : asgrotare virili-

Se&. 2. of Germany and Britain. 1 9

ftirred by other views, and accuftomed
to fofter manners, place no longer any
pride in the contempt of death, and give
themfelves up, on its profpe£t, to alarm
and perturbation.

SECT. II,

The fame fubjeft continued.

THE Germans were not lefs remark-
able for their moral chara&er
and inftitutions. Exifting in an age of
rude manners, before individuals had a
property in land, and before the difad-
vantages attending the barter of com-

ter non queunt. Graci autem homines ram fatis animo-
fi, prudente?, ut eft captus hominum, fatis hoftem adfpi-
cere non poflunt, eidem morbos toleranter atque huma-
ne ferunt. At Cimbri et Celtiberi in prceliis exfultant, la-
jnentantur in morbo; nihil enim poteft effe aequabile, quod
non a certa ratidne proficifcatur." D$. Tu/cul. lib. 2.

G Si modities

20 Of the Ancient Inhabitants Part L

modities had imprefled the metals (i)
with a mark of value, their wants were
few, and eafily gratified. Rich in the
liberty they enjoyed, they knew no
wifhes beyond the fimple produce of the
earth ; no luxury, which was not afford-
ed by the animals they tamed for their
ufe, or hunted in their forefts ; no con*
venience, which they found not in the
huts, or coverings, which defended
them from the weather. Ignorant of
all thofe diftinclions which refinement
and civility make known to mankind,
they were ftrangers to the pride of fa-
mily and pofleflions, and to the mean-
nefs and ridicule infeparable from a di-
vided labour arid particular profeflions ;
and living entirely at large, and on a
footing of equality, paid no refpecT: but
to merit; and incapable of fraud and
circumvention, poflefTed a greatnefs and

(i) Tacit, de M. G. c. 5. Argentum et aumm propitii
an irati dii negaverint, dubito. — Ne armentis quidemfuus
honor, aut gloria frontis. numero gaudent. eaeque folae et
grauifimas opes funt.

extent

Sed. 2. of Germany and Britain. $ \

extent of mind, which are not generally
attained in more advanced ages.

They were courteous to each other,
fmcere in their dealings, faithful to their
word, and firm to their attachments.
The ufe (2) of riches had not taught
them to deceive. They were hofpitable
beyond all nations ; and not only e-
fteemed it diflionourable to deny admit-
tance to a gueft (3), but made it the
objecT: of punifhment. Nor was their
care limited to their own nation : they

(2) Tacit. Annal. 13. f. 54. — " Nullos mortalium armis
aut fide ante Gcrmanos efTe." — The Roman Emperors
were in ufe to have a guard of Germans on account of
their fidelity. Tacit. An. i. r. 24. ; 13. c. 18, and 15.
«jfr

(3) Quicunque hofpiti venienti teftum aut focum nega-
verit, trium folidorum inlatione mulftetur — Si in caufa
privata iter agens, ad Burgundionis domum venerit, et
hofpitium petierit, et ille domum Romani oflenderit, et
hoc potuerit adprobari, inferat illi cujus domum oftende-
rit, folidos tres : et muldlae nomine, folidos tres. Leg.
BurgunJ. ap. Lindenlr. p. 282. Convidibus et hofpitiis
non alia gens effuiius indulge*. Quemcumque morta-
lium arcere teclo, nefas habetur. pro fortuna quifque
apparatis epulis excipit. Tacit, de M. G. c. 21.

C 3 extended

ai Of the Ancient Inhabitants Part I.

extended it to the travellers (4) wh'o
might pafs through their country, fet-
ting afide a divifion of the public grain
and treafure for their entertainment.
And what fhows a refinement (5) not
to be expedted from barbarians, they
made it a law to profecute, with greater
rigour, the murder of a ftranger, than
of a citizen. Gentle in the exercife of
power, their flaves and inferiors felt not
their feverity. Mild in the treatment of
criminals, they forgot not the modera-

(4) Damafcen. de M. Gent. " Mofyni frumentum quod
ipfis ex agris provenit, aequaliter diftribuunt, partemque
inde aliquam in commune conferentes pro percgrinis ad-
venientibus. — Prayfii vicinos fame affliclos alimento fub-
levant." C<?far, lib. 6. e. 23. '* Hofpites violare, fas non
putant : qui, quaque de caufa, ad eos venerint, ab inju-
ria prohibent, fanftofque habent; iis omnium domus pa-
tent, viftufque communicatur." The Indians were alfo
extremely hofpitable : " Conftituti font apud Jndos,"
fay* Diotfcrus Siczt/us, lib. 2. c. 42. " advenarum prasfedli ;
qui ne quid injuriae patiantur, accurate provident. Si quis
ilJorum asgrotat, medicos adhibent, aliamque curam im-
pendunt, et mortuum fepuhurae tradunt. Quicqujd ab eo
reliclum eft peculii, propinquis reAituunt."

(5) Damafcen. de Mor. Gent. Graviorem pcenam apud
Celtas luit, qui peregrinum, quam quicivem interemerit :
ille enim morte multatur, hie exilio.

tion

*• of Germany and Britain. 23

tion and equity which attend on liber-
ty. Their fiercenefs was corrected with
humanity, and their generality unfet-
tered by the narrow boundary of an
exact juftke. They were unacquaint-
ed with that fofter luxury which more
delicious climates introduce into focie-
ty, and neither indulged a plurality of
wives, nor prohibited their women to
attend them to the field, to aflift in their
councils, and to be ufeful and active in
the different occupations which employ-
ed them. For gallantry (6) accommo-
dating every thing to the ftandard of plea-
fure, had not yet turned the fex from

(6) The connexion with the fex is a capital circum-
fiance in the diftin&ion of manners. Lycurgus, to pre-
vent improvement in Sparta, made a community of
wives. When Genghizcan would poiifli a certain tribe
of the Tartars, he obferved the contrary conduct, and
punilhed adultery with death. The Greeks and Romans,
becaufe referved in this article, arrived flowly at refine-
ment. Thus, in ages otherwise cultivated, Socrates lent
his wife Xantippe to Alcibiades, and Cato parted with
Marcia to Hortenfius.— " Cato Hortenfio roganti Mar-
ciam fuam noftra astate tradidit, fecutus veterem Roma-
aor«m confuetudinem/' Stra&o, lib. 11.

C 4 bufinefs,

£4 Of the Ancient Inhabitants • Part L

bufmefs, or made it the object of a crimi-
nal voluptuoufnefs. Vice, in thofe fim-
ple and virtuous times, had not lifted her
head in triumph over innocence. Am-
bition had not intruded into the place of
inodefty ; nor were the poor crufhed un^
der the proud oppreflion of the rich. A
wafteful expence had not put to fhame a
temperate frugality : a jarring of in~
terefts had not oppofed itfelf to concord
and union : nor was a precarious juflice
(7) to be bought from the corrupted tri^
bunals of judges. The ignorance (8)
qf crime was a firmer prefervative tQ
their manners, than to other nations the
ftri&nefs of law, and the knowledge of
virtue.

(7) Jujlin. III. 2. f. z. Juflitia gentis ingeniis cults,

non legibus. Aurum et argentum non perinde ac re-

liqui mortales appctunt. — Haec continentia, illis morum
quoque juftitiam eclldit, nihil alienum concupifcentibus.
Quippe ibidem divitiarum cupido eft, ubi et ufus.

(8) Prorfqs ut admirabile videatur, Jays the fame au-
thor, hoc illis caturam dare, quod Graeci longa fapien-
tiam doftrina, przceptifque philofophorum confequi ne-
queunt j cultofque mores incultae barbariae collatione fa-
perari. Tanto plus in illis proficir vitiorum ignoratio,

in hi§ <:Qgnitio virtutis.

SECT.

Sed. 3. of Germany and Britain. 25

SECT. III.

Of property among the Germans.

PRoperty, ever varying with the
fentiments of mankind, and ever
a&ing with the greateft influence on
manners, is at no period to be defcribed
with accuracy. If at prefent, when
learning and fcience are fo generally
difFufed, the different opinions concern-
ing it are every day the occafion of dif-
pute and animofity, how fhall its boun-
daries be delineated, in times which
a remote antiquity has concealed from
obfervation ? Senfible of the difficulty
cf this article, I prefume not but to of-
fer a few hints on it.

In the firft and fimpleft period of fo-
eiety, the age of hunters (i), property

would

(i) The Fenni were in this age of manners : " Fennis
eritas, fceda paapertas, nom arma, non equi, non

penates;

^6 Of the Ancient Inhabitants Part I.

would be moft confined in its extent
and privileges. The fkins with which
the favage covered his body, the club
which he ufed for defence, and the
animal (2) he had caught by his fwift-
nefs, or his art, would almoft include
the whole of what may be fuppofed to
have belonged to him. And having
once loft pofleffion of thefe, though
contrary to his inclination, it does not
appear, that he would retain any right
to them. For property, having its foun-
dation in the ufe or pleafure accruing
from fubjecls to their pofiefibrs, thefe

penates: vi&ui herba, veftitui pelJes, cabile humus.
Sola in fagittis fpes, quas inopia ferri ofllbus afperant.
Idemque venatus viros pariter ac feminas alir. Paflim
cnim eomitantur, partemque praedze petunt." Tacit*
& M. G. c. 46.

(2) Atkatavtlib. 1 1. p. 462. Hdlanicum, libro de
gentium nomenclaturis, fcripfifle novi, Lybicorunv No-
jnad^m quibofdam, nihil aliud in bonis cffe, quam po-
culum, gladium, aquale : Mapalia vero ex afphodelo iia
conilrui^ angulla umbrae tantum captandae gratia, quae,
quocunque ierint, circumferant fecum. Dama/cen. de
j\'L G. Sardolibyes nullam fopelleftitem fibi parant, prae-
ter calicem et gladium.

fubj^cls,

. 3« of Germany and Brtfain. zj

fubjeds, no longer in pofleflion, nor
operating to fuch purpofes, would, in
this peripd, be confidered as entirely
derelinquifhed, and become the prizes
of the firft occupant. In the age, how-
ever, of fhepherds, when animals are
tamed, and receive the different marks
(3) of their proprietors, a property
is conceived diflinct from pofleffion.
Hence, among the Scythians and Tar-
tars (4), no crime was punifhed more
feverely than theft. In relation to land,
in this period, the members of a tribe

(3) Oves, fays Diodorus Sifulus, lib. $.c. 14. of 'a peo-
ple in this period, certis diftinclx notis, etiam nemine fer-
vante, heris falvaj manent.

(4) (t Nullum fcelus, fays Juftin, Jib. 2. c. 2. of the
Scytbiant, apud eos furto gravius \ quippe fine tefto mu-
nimentoque pecora et armenta inter fylvas habentibus
quid falvum efler, fi furari liceret ?" It was one of the
laws of Genghizcan, That he who flole an ox, or any
thing of that value, ftiould be punifhed with death; and
no law was more rtriftly executed. PetisdelaCrcix,pt%A.,
When the Germans, and other barbarians, had made
conquefts, the receivers of ftrayed cattle were confidered
as guilty of theft, and punilhed feverely, if they failed to
reitore them within a certain time. Erfifl. Tbeod, Reg*
f. 58. ap. Lindenb. p. 250.

feed

28 Of the Ancient Inhabitants Part I.

feed (5) refpedively their cattle on the
fields they find unoccupied ; and, af-
ter enjoying a temporary property,
leave them to be poffefled again by
others.

In the age of agriculture, at which
the Germans had arrived, property af-
furnes other and more enlarged appear-
ances. But in this ftate, authors, not
attending to the hiftory of mankind,

have

(5) Mela, lib. 2. f. i. " Vagi Nomades pecorum pabula
fequuntur, atque ut ilia durant, ita diu ftatam fedem
agunt." Jujiin, lib. 2. r. 2. " Scythis inter fenulli fines,
neqae enim agrum exercent ; nee domus illis ulla, aut
teftum, aut fedes eft, armenta et pecora Temper pafcen-
tibus, et per incultas folitudines errare folitis. Uxores
liberofque fecum in plauftris vehunt, quibus, coriis im-
brium hiemifque caufa te&is, pro domibus utuntur."
The reader may alfo confult the defcription of the Hunni
and Alani in Ammianvs ^arcellinus^ lib. 31. c. 3. It
was in this manner likewife that the patriarchs lived. See
Cenef. cJj. 1 3. from v. ^.tov. \ 2. It may be farther ob-
ferved in this place, that in the earlier times among the
Romans, the grounds and pattures, which were confi-
dered as belonging to the public, were poflefTed indif-
ferently by the flocks and herds of the vulgar, as their
convenience or rapacity induced them. But the wants
and wars of that people foon making them careful of the
public revenue, laws were ena&ed, which impofed a

rent

Sect. 3. of Germany and Britain. 29

have perhaps failed to defcribe it with
precifion. It is certain, that land is firft
conne&ed with nations ; and that fome
ages (6) neceflkrily roll away before it
can be united, or transferred, to indivi-
duals. The hiftory of the Germans
will exemplify its connection in the one
cafe, and may lead us to conjecture by
what means it arrives at the latter ; and
how, of confequence, the more refined
and extended notions concerning pro-
perty have birth in fociety.

rent or fine on the perfons who ufed thefe advantage?.
This matter is elegantly defcribed by Ovid :

" Venerat in morem populi depafcere faltus :

Idque diu licuit, pcenaque nulla fuit.
Vindice fervabant nullo fua publica vulgus,

Jamque in private pafcere inertis erat.
Plebis ad yEdiles perdudta licentia talis

Publicios • animus defuit ante viris.
Rem populus recipit : mul&am fubiere nocentes :

Vindicibus laudi publica cura fuit."

.!i!,.$.l, 283.

(6) The refpe&able author of the Hiftorical La\v-traft$
does not feem to have attended to thefe fafts ; (fee his Hift.
of Property j) nor are they taken notice of in the Eflay on
Feudal property.

AGer-

30 Of the Ancient Inhabitants Part L

A German tribe having fixed on fc
tract of country where to fettle, confi-
dered the whole as belonging to it ; and
individuals thought not of appropria-
ting particular poffeffions. The care of
its maintenance ingroflifig the firft at-
tention of the community, a certain
portion of territory was marked out for
that end, and given to (he one half of
the people to be cultivated. The other
half fpread the glory of the nation,
enlarged its dominion, or repelled the
attacks of an enemy* And as they al-
ternately relieved each other (7), the

tribe

(7) C<efar, lib. 4.^. i . " Suerorum gens eft longe maxi-
ma et bellicofiffima Germanorum omnium. Hi centum
pagos habere dicuntur : ex quibus quotannis fingula mil-
lia armatorum, bellandi caufa, ex finibus educunt. Re-
liqui, qui domi maaferint, fe atque illos alunt. Hi rur-
fus in vicem anno poft in armis funt : illi domi remanent.
Sic neque agricuhura, nee ratio, atque ufus belli inter-
mittitur." — By the way, the nation of the Suevi, allow-
ing 2000 to every pagus, muft have confiited of 200,000
people. According to this rule, one might conjeclure the
populoufnefs of ancient Gaul and Germany. Thus the
Semnones, who alfo inhabited an hundred pagi, were of
equal force with the Suevi : '* Semnones centum pagis

habitantur^*"

5. of Germany and Britain. 3 1

tribe became expert both in war and
agriculture.

But however natural it may feem, the
Attachment of nations to a particular re-
fidence, follows not immediately their
acquaintance with agriculture. For a
German nation, though deriving its fub-
fiftence from the products of the earth,
yet renounced not entirely its wander-
ing way of life* It annually removed
to a new fituation, always alloting a
new territory to be cultivated for its ufe,
Shall we account for this practice from
the influence of former habitude ? of
rather, feeking its foundation in politi-
cal reafons, afcribe it to the fear, left,
fixing to a certain feat, the nation fhould
be feduced to prefer tillage to arms ; left
houfes, reared with too anxious a care,
fhould minifter to luxury ; left diftinc-
tions of rank, introduced by riches,

habitantur ;" Tacit. tie M. G. c: 39.
whofe nation extended to four pagit confifted of 8000 :
<c Omnis civitas Helvetia in quatuor pagos divifa eil ;"
C#far, lib. i. €. 12. And fe Gf the reft.

fhould

i

32 Of the Ancient Inhabitants Part I*

fhould furnifh (8) matter of divifion, and
the fpirit of commerce fucceed to that
of war ?

When the fruits of their fields had
come to maturity, the magiftrate (9)

(8) C*far, lib. 6. r. 22.— Neque quifquam agfi mo-
dum certum, aut fines habet proprios ; fed magiflratus,
ac principes in annos fingulos gentibus, cognationibufque
hominum, qui una coierint, quantum, et quo loco vifum
eft, agri adtribuunt, atque anno poft alio tranfire co-
gunt. Ejus rei multas adferunt caufas, ne adfidua con*
fuetudine capti ftudium belli gerundi agricultura com-
mutent ; ne latos fines parare ftudeant, potentiorefquc
humiliores pofleflionibus expellant ; ne adcuratius ad fri-
gora atque aeftus vitandos, -sdificcnt ; ne qua oriatur pe*
cuniae cupiditas, qua ex re fadiones, diflenfioncfque naf-
cuntur: ut animi a-quitate plebem contineant, quum
fuas quifque opes cum potentiffimis aequari videat. //.
lib. 4. f. i. — Neque longius anno remanerc uno in lo-
co, incolendi caufa, licet. Vacit. de M. G. e. 26. Ar-

va per annos mutant, et fupereft ager. And Horace f^yt

of the Getesy lib. 3. ttf. 24. Nee cultura placet Ion-

gior annua.

(9) Diedorus Siculus, lib. 5. c. 34. remarks of a nation
in Spain, " Agros fingulis annis divifos colunt : et com*
municatis inter fe frugibus fuam cuique partem attri-
buunt." And Strabo remarks of the Indians, lib. 15.
Per cognationes et communiter agros colunt ; et cum
fruftus colligunt, quifque onus fuum tollat in anni ali-
menta : reliquum vero crement, ne otiofi fmt, fed ha-
beant laborandi caufam.'*

and

Sect. 3. of Germany and Britain. 33

and leading men of the ftate divided
them among the members of the tribe.
But it muft not be fuppofed, that in
thefe divifions every individual was e-
qually confidered. Warriors, fierce and
independent, and apt to value highly
their merits, were not to be fatisfied with
the fame allotments given to the multi-
tude. Hence (10) every fhare was pro-
portioned to the dignity and virtues of
the receiver.

So far ancient authors have inftrucl:-
ed us concerning the ftate of land in
Germany. Let us now attend more
minutely to the act of dividing it among
the individuals of a tribe. To a rude
people, uninftructed in arts, and not
ufed to abftraction, this act would of it-
felf to be difficult and embarraffing. The
adjusting of the character of every in-
dividual, in order to determine the fhare

(10) Tacit, de M. G. c. 26. Agri pro numero cuho-
rum ab univerfis per vices occupantur, quos mox inter fe
fecundam dignationem partiuntur. facilitatem partiendi,
camporum fpatia prsftant.

D

to

34 Of the Ancient Inhabitants Part I.

to which he was intitled, and the dif-
putes arifmg from the vanity, ambition,
and other paflions of each, would ren-
der it ftill more intricate ; and as an
increafe of multitude is unavoidable to
a rifing people, who find advantage
from the number of their children, it
would come in time to be altogether im-
practicable. Hence (u) it would be ne-
ceffary for a tribe to reduce itfelf, or to
devife fome other method by which to
obviate this difficulty.

(n) The difficulty of dividing their lands is perhaps
the principal reafon of the numerous colonies fent out
by ancient nations. Other caufes of migration would a-
rife from the fpirit of war. The avoiding of an enemy
whom they could not rcfift, the prefling of one tribe upon
another, the ardour of vidlory, the love of plunder, and
the hopes, we may ard, of fettling in a richer foil, would
often make them fhift their territories. The point of ho-
nour, tot), being extremely delicate, difputes among chiefs
would be frequent, and ever carried to extremities. The
retainers of each taking part in the quarrel, whole na-
tions would be agitated with their paflions, and the ut-
n)oft diforder and alarm be occafioned. To leave his
tribe from choice, or to be obliged to that flep, would
therefore infallibly happen to the weaker party. In ei-
ther cafe, colleding his retainers, and their families, he
would go in fcarch of new adventure?, and a new fettle-
ment.

But

Sect. 3. 'of Germany and Britain. 35

But to diminim its numbers, by fend-
ing out a colony, is not at all times pro-
per, and might be often dangerous to a
nation. Surrounded, I fhall fuppofe,
with many warlike and ambitious neigh-
bours, its total deftru£tion would be the
confequence of fo imprudent a meafure.
No longer, therefore, in a capacity to
make the ufual divifions, and reftrain-
ed by the fears of an enemy from leflen-
ing its forces, to what refource would
it direct itfelf ? Settling in a certain ter-
ritory, it would affign particular fpots
to particular families ; and from this
circumftance the union of land with in-
dividuals would refult* For the de-
fcendants of fuch families, forming an
attachment to the pofTeflions of their
anceftors, would continue to enjoy
them ; and land, lofing its connection
with the community (12), would return
no longer to the tribe. New fubdivi-
flons of it would be every day made ;
•v and

(12) I forget my authorities; but I have read fome-
where, that in Greece, during the earlier ages, if a pof-

36 Of the Ancient Inhabitants "Parti.

and proprietors, in the progrefs of com-
merce, acquiring the greatefl power o-
ver fubjedb, would not only difpofe of
them as they pleafed when alive, but
make fettlements to take effect after
death. Luxury and the arts would
fpread themfelves ; cities be built ; dif-
ferent interefls be acknowledged ; invi-
dious diftin&ions take place ; notions of
nobility be conceived ; riches become
the general purfuit ; and (13) the civil
Code grow with the vices, venality, and
corruptions of mankind.

feflbr of land died without iflue, his pofFeffion returned
to the tribe. The more diftant relations of the deceafed
were not fuppofed to have formed any connexion with
his land j nor was the notion of property fo far evolved,
as that proprietors might name their fucceffors.

(13) I fpeak here in general, and not of the manner
in which individuals acquired a property in land among
the German and Gothic tribes.

SECT,

4. of Germany and Britain. 37

SECT. IV.

Of the political inftitutions of the Germans,

I Now proceed to give a general idea
of the political arrangements of this
people. It were to little purpofe, after
fo many learned men have written con-
cerning the origin of civil government,
to introduce what I would obferve of
the German polity, with a difquifition
on that fubje£L It may be fufficient to
remark, that, if the Mofaic hiftory be
juft, it mufl have followed, that on the
increafe of mankind, when the tie of
relation was no longer felt or obferved,
the patriarchal authority being entirely
difregarded, the more powerful would
incroach upon the weaker, and the ut-
moft confufion prevail in fociety. The
idea of a public intereft thence fuggeft-
ing itfelf, more extended connections
D 3 would

38 Of the Ancient Inhabitants Part L

would be thought of, A few leading
men, beft qualified for the tafk, would
be fet over particular territories, to go-
vern them, with a power fubordinate to
the people. It was thus in Germany.

The more illuftrious citizens (l), or
the princes, as the Roman hiftorian
affecl:s to call them, were intruded By
the people with the management of
hundreds and counties. .And the office
and jurifdidion of thefe magiftrates ex-
pired, at firft, with the year ; as, accor-
ding to the method juft now mentioned,
by which a German tribe was regula-
ted, the ftay of its members in their
own country was but annual ; and when
they went to war (2), all authority was
lodged with the general. This circum-

(i) C&far, lib. 6. c. 23. — ?rincipes regionum atque
pa^orum inter fuos jus dicunt, controverfiafque minuunt.
facit. de M.G. c 12. — Principes jura per pages vicof-
que reddunt.

(2) Cafar, lib. 6. c. 23. Quum bellum civitas aut inlatum
defendit, aut infert; magiiiratus, qui ei bello praefmt, ut
vitas necifque habeant poteftatem, deliguntur.

fiance

Sect. 4. of Germany and Britain. 39

ftance was favourable to the people ;
and the allotments to princes in the an-?
nual divifion of the land being unequal
to the expence of maintaining their digr
nity, and the fhares they received in the
diftributions of booty furnifhing to this
end a precarious relief, it was the con-
tributions (3) of the populace, which
were voluntary, and not fubjecl: to ex-
action, that fupported the rude fplen-
dour and magnificence in which they
were fond to vie with each other. Hence
the princes found themfelves in a ftate
of fubjection and dependence.

In the community the fupreme povrer
was veiled. The council of the nation,
confiding of thofe who had been pre-
fented with a framea, for all fuch had a
title to be prefent, aflembled (4) at fta-

(3) Tacit. deM. G. c. 15.

(+) Tacit. deM. G. c. ir. Coeunt, nifi quid fortui-
tum et fubhum incident, certis diebus, cum aut inchoa-
tur luna, aut impletur. nam agendis rebus hoc aufpica-
tiflimum initium credunr.

D 4 te4

40 Of the Ancient Inhabitants Part L

ted times : and (5) every man came to
it in arms ; a fenfible mark of his in-
dependence. But as the extreme liberty
of the people made them flow to con-
vene on more ordinary occafions (6),
it was a law, that the perfon who came
laft, when matters of importance were
under deliberation, fhould be put to,
death, with the mod ignominious and
excruciating (7) torture, as utterly regard-
lefs of the honour and intereft of his
tribe. To none but in this aflembly

(5) Livius, lib. 21. c. 20. Armati (ita mos gentis

erat) in concilium venerunt. Tacit, de M. G. c. 1 1. Ut
turbse placuit confidant artnati. Damafcen. de M. G.
Celts gladiis cindti reipub. negotia traclant.

(6) Tacit, de M. G. c. 1 1. Illud ex libertate vitium,
quod non limul, nee juffi, conveniunt, fed et alter, et ter*-
tius dies, cunflatione coeuntium abfumitur.

(7) C#far> HI. 5. c. 56. — Armatum concilium indi-
cit. (hoc more Gallorum eft initium belli) ; quo, lege
com muni, omnes puberes armati convenire confuerunt :
qui ex iis noviflimus venit, in confpeclu multitudinis
omnibus cruciatibus adfedus necatur.

8

was-

SecT:. 4- cf Germany and Britain. 41

was it lawful (8) to fpeak of public af-
fairs ; and to thofe alone whom age had
rendered wife and venerable, and to
whom valour, eloquence, or other me*
rits, had given reputation, was paid a
preferable attention! In other refpects
there fubfifted the moft entire equality ;
for no artificial differences of place, or
of rank, being known, the only diftinc-
tions among men were their perfonal
qualities. In this national affembly
they deliberated about peace- and war,
and concerted the plan of operations
for the year. Here the general and
princes were elected : here they deter-
mined againft what nation they fhould

(8) Ctefzr, lib. 6. c. 20. Quae civitates commodius fuam
rem publicam adminiftrare exiftimantur, habent legibus
fan&um, fi quis quid de republica a finiiimis rumore ac
fama acceperit, uti ad magiftratum deferat, neve cum
quo aliocommunicet : quod f£epe homines temerarios at-
que imperitos falfis rumoribus terreri, et ad facinus in-
pelli, et de fummis rebus confilium capere, cognitum eft.
Magiftratus, quas vifa fuht, occultant ; quaeque efle ex ufu
judicaverint, multitudini produnt. de republica, nifi per
concilium, loqui non conceditur.

turn

42, Of the Ancient Inhabitants Part L

turn their arms, and what number (9)
of auxiliary troops they fliould hire out
to the neighbouring tribes that might
alk their aid. Here new cuftoms got
their fan&ion, old ones were abolifh-
ed, embaflies to foreign powers were
ordered, the divifion of the land di-
re£ted, and all concerns whatever of
ftate or moment tranfa&ed. The majo-
rity of voices decided all controverfies ;
and the meafures they found moft ex-
pedient and agreeable were embraced,
and profecuted with a fpirit and refolu-
tion, which could not fail to be infpi-

(9) Arioviftus made the following offer to Caefar, which
Ihows, that the Celtic nations were in the praftice of
hiring themfelves out to battle: Ca'far, lib. i. r, 44.
«' Quod fi deceffifTet, et liberam poffeliioncm Gallias fibi
tradidifiet, magno fe iilum prsemio remuneraturum, et
quzecunque bella geri veliet, fine ullo ejus labore et
periculo confefturum." And it is obfervabJe from the
fpeech of Ambiorix to the Roman deputies, that the
Germans hired themfelveb out to the Gauls : " Magnam
manum," fays that chieftain, " Gerrnanorum con-
duttam Rhenum tranfilTe." Cafar, lib. 5. c. 27. See
alfo this author, lib. 6. c. 2. ; and Plutarch in <vit»
Marcel.

red

. of Germany and Britain. 43

red when every man was equally interr-
efted in them.

This mode of government, fo free
and limited, naturally arofe from the
ftate of fociety of the Germans ; and
it is furprizing how their prejudices
could fo far impofe on writers, as to
make them fancy, that this people fub-
mined (10) to the will of kings. When
individuals have become acquainted
with riches, aud the ftate of equality is
no longer preferved ; when to afpire to
fuperiority is the general ambition, and
men ft niggle to emerge from obfcurity,
for the pleafure of lording it over
others ; it is then that we are to look for
the kingly authority. So Tacitus would
inform us, when talking of a certain
people of Germany : Eft apud illos et
opibits honos. eoque units imperil at ^ millis
jam exceptionibuS) nonprecariojureparendi.
But the Germans, equally ignorant of

(10) Filmer's Patriarcha. Maiharel. refp. ad Hottom.
jFranco-Galiiam.

the

44 Of the Ancient Inhabitants Part I,

the means -and enjoyments of luxury,
difdained all fubjedion to an arbitrary
rule. And their princes or great men,
having no way by which to corrupt
them, or introduce venality, and there-
by foment divifions, and raife them-
felves to power, ftudied to become il-
luftrious by martial atchievement, and
by being elected to the command in ex-
peditions. Accordingly, in the hiftory
of thofe nations, we find few attempts
to overturn liberty; and thefe, always
unfuccefsful, were infpired from an ac-
quaintance with the Roman manners.

Arminius (11), for example, concei-
ved the ambitious projed: of advancing
himfelf to a fupreme fway over his na-
tion ; and he poflefled every advantage
which could promife him fuccefs in fo
bold an undertaking. Superior vigour
of mind, and a genius turned to em-
ployment, quick and penetrating, were
joined, in this man, with great ilrength

(u) This commander had ferved in the Roman ar-
mies. Tacit .AH. 2. c. 10. j and Paierculus> lib. 2.

of

Sect. 4. of Germany and Britain. 45

of body, majefty of afpect, and illu-
flrious defcent ; qualities chiefly regard-
ed by barbarians. He had alfo endear-
ed himfelf to his country, by the moft
memorable fervices. He had conquered
Varus, and infulted over the Roman en-
figns and eagles : he had oppofed and
fruftrated the defigns of his father-in-
law Segeftes, who had leagued with the
Romans : he had flopped the victorious
arms of Germanicus ; and, fecuring the
rights and liberties of his country, was
intitled to the glorious appellation of
Deliverer of Germany. Yet his nation,
too much in love with freedom to be
dazzled by his virtues, or his fervices,
declared him an enemy, and a traitor.
In vain all the obligations it owed to
him were numbered, and his merits
and acts fo well calculated to gain fa-
vour with the people. In vain was his
character glorious from recent victory ;
or did his early youth offer itfelf to ex-
cufe his ambition. Nothing had in-
fluence to mitigate his crime ; and his

own

4 6 Of the Ancitnt Inhabitants Part I.

own relations expiated, by his death
(12), the atrocious infult on his coun-
try and family. So ftrong an averfion
did the Germans entertain to tyran-
ny !

But war being the conftant bufmef£
of this people, numbers were every day
made known by their valour ; and
when fufficiently pra&ifed in art and
ftratagem, by the inroads and incur*
fions they exercifed on their neighbour
nations (13), they became candidates to

command

(12) Ceterum Arminius, abfcedentibus Romanis, et
pulfo Maroboduo, regnum adfeftans, libertatem popufa-
rium adverfam habuit: petitufque armis, cum varia for-
tuna certaret, dolo propinquorum cecidit, liberator haud
dubie Germanic, et qui non primordia populi Romani,
ficut alii reges ducefque, fed florentiflimum imperium la-
celTierit : proeliis ambiguus, bello non vidus. Tacit,
an. 2.. c. 88.

(13) C<efar, lib. 4. c. 3. Publice maximam putant e/Td
Jaudem, quam latiffime a fuis finibus vacare agros : hac
re fjgnificari, magnum numerum civitatum fuam vim
fuftinere non pofle. Id. lib. 6. f. 23. — Ubi quis ex
principibus in concilio dixit fe ducem fore, qui fequi ve-.
lint, profiteantur; confurgunt ii, qui et caufam, et ho-
jninem probant, fuumque auxiiium pollicentur ; atque ab

multitudine

Sect. 4< of Germany and Britain. 47

command the tribe. And this honour
giving fcope to the contention and ri-
valfhip of the great, as the hero, who
in the council of the ftate fuggefted the
meafure the moil acceptable, was chofen
to conduct it, they were led to flatter
the people, from whom alone they
could expect preferment, and to be
attentive to the defigns and behaviour
of each other. Hence were thofe, by
the greateft happinefs of circumftance,
from whom liberty had any thing to
dread, made her guardians and protec-
tors. It is true, it fometimes happened,
that the dangers and grievances of a te-
dious war rendered it requifite, that a
general mould be named for life ; yet
was this general, or king, as he is often-
er called by the Roman hiftorian, in
pofleflion of very limited powers (14),

and

multitudine conlaudantur : qui ex iis fecuti non funt, in
defertorum ac prodkorum numero ducuntur ; omnium-
que iis rerum pollea fides derogatur.

(14) Tacit, de M. G. c. 7. Ne- regibus infinlta act li-

fre.ra poteftas/' -Ambiorix, one of the kin^s of the

Eburones,

48 Of the Ancient Inhabit ants Part I.

and the leaft fufpicion was fatal to him.
We may therefore conclude, that liber-
ty was the bafis of the German conili-
tution.

Eburones, apologizes thus for his conduct to Caefar :r—
" Sefe, pro Caefaris in fe beneficiis, plurimum ei confi-
teri debere, — — neque id, quod fecerat de obpugnatione
caftrorum, aut judicio, aut voluntate fua fecifle, fed co-
aftu civitatis : fuaque eiTe ejufmodi imperia, ut non mi-
nus haberet juris in fe multitudo, quam ipfe in multitu-
dinem." Ciefar, lib. 5. c. 27. Lifcus alfo, the chief
magiftrate of the ^Edui, told Caefar, — " Efie nonnullos,
quorum audtoritas apud plebem plurimum valeat, qui
privati plus poffint, quam ipfi magiftratus," Ctsfar, lib. i.
e. 17. The Gothones, the moft flavifh people in Germa-
ny, had yet a fenfe of liberty : " Trans Lygios Gothones
regnantur, paulo jam adduftius quam ceterae Germano-
rum gentes. nondum tamen fupra libertatem." Tacit, de
M. G. c. 43. What Nabis, a king of Lacedasmon,
laid to Flaminius, the Roman general, of the govern-
ment of his country, may apply to that of Germany :
" Nofter legumlator non in paucorum manu rempubli-
cam efie voluit, quern vos fenatum appellatis ; nee ex-
cellere unum aut altcrum ordinem in civitate ; fed per
sequationem fortunse ac dignitatis fore credidit, ut multi
effent, qui arma pro patria ferrem." Livt lib. 34. c. 31.

SECT.

Se£t. 5. of Germany and Britain. 49

SECT. V.

Of the inhabitants of Britain^ and the
Saxon conqueft.

TH E ancient inhabitants of Bri-
tain were undoubtedly of the fame
race of men with the Gauls and Ger-
mans. They fpoke the fame language,
fubmitted to the fame form of govern-
ment, were guided by the fame fyftem
of manners, and pra<ftifed the fame fu-
perftition (i) with thefe nations. It is

(i) Pelloutier^ hift. a'es Celtes, torn. i. Clu^jer^ anttq.
Germ. Bullet , Memoir es fur la langue Cehique. Ic is
the opinion of Tacitus, that they were defcended of the
Gauls : " Proximi Gallis, et fimiles funt : feu durante
originis vi ; feu procurrentibus in diverfa terri?, pcfitio
cocli corporibus habitum dedit. in univerfum tamen sfti-
manti, Gallos vicinum folum occupafle, credibile eft.

>rum facradeprehendas, fuperftiticnum perfuafione. Ser-
.haud muhum diverfus." A°r.c. 11.

E

even

^o Of the Ancient Inhabitants Part I,

even probable (2), that they carried
their ferocity to greater heights* For
the colony of Phocians, which fettled
at Marfeilles fo early as the age of Tar-
quin, had introduced a polifh and foft-
nefs into Gaul (3) ; whence they fpread
into Germany ; and thefe countries,
fooner invaded by the Romans, were
alfo improved during their ftruggles
with that intelligent people. But the
Britains, confined to an ifland, and al-

(2) This author adds in the fame place, " Plus tamen
ferocise Britanni praeferunt, ut quos nondum longa pax e-»j
mollierit."

(3) Juft*n-> b&' 43* c' 3> & 4» Temporibus Tarquinii
regis ex Afia Phccaeenfium juventus, oftio Tiberis invefta,
amicitiam cum Romanis junxit : inde in ultimos Galliae
finus navibus profe&a, Maffiliam inter Ligures et feras
gentes Gallorum condidit j magnafque res, five dum ar-
mis fe adverfus Gallicam feritatem tuentur, five dum ul-
tro lacefiup.t, a quibus fuerant ante lacefliti, geflerant,
— Ab his Galli, et ufum vitae cultioris, depofita et man-
fuefafta barbaria, et agrorum cultus, et urbes moenibus
cingere didicerunt. Tune et legibus, non armis vivere,
tune et vitem putare, tune olivam ferere confueverunt;
adeoque magnus et hominibus et rebus impofitus eft nitor,
ut non Graecia in Gdlliam emigralTe, fed Gallia in Graa-
ciam tranflata videretur.

moft

Seel. 5*. of Germany, and Britain. 5 r

mod unknown to Grangers (4), remain-
ed long in a ftate of barbarity, the moil
fierce and uncomplying. Making no
account of agriculture, or the arts of
peace, and even ignorant of the conve-
niences of life (5), they were folely em^
ployed in wars, which their ftates wa-
ged againft each other, or, dividing into
factions (6), carried on within them-
felves. It is likewife a certain mark of

(4) Ctefar fpeaks of Britain as entirely unknown before
his time ; and Virgil faid, in the age of Auguftus, (t Et
penitus toto divifos orbe Britannps." EC. j.

(5) Strabo^ lib. 4. Ingenio Gallorum partim fimiles
funt, partim fimpliciores, et rnagis barbari, adeo ut qui-
dam eorum ob imperitiam cafeos nullos confidant, cum
tamen lafle abundent : alii hortos colendi, et aliarum
partium agriculture ignari funt.— Urbium loco ipfis funt
nemora. Arboribus enim dejeclis ubi amplum circulum
fepierunt, ipfi cafas ibidem fjbi ponunt, et pecori ftabula
condunt, ad ufum quidem non longi temporis.

(6) What C<efar relates of Gaul will apply to Britain :
" — Quod in Gallia, a potentioribus, stque his, qui ad
conducendos homines facilitates habebant, vulgo regna
occupabantur." — de B, G. lib. 2. c. i. And Tacitus fays
exprefsly of the Britain?, — >' Per principes faftionibus et
Sudiis trahuntur." -dgr. c. 12.

E 2 their

52 Of the Ancient Inhabitants Part I.

their rude manners (7), that the Gauls
were in life to refort to this ifland, in
order to acquire a purer and more inti-
mate knowledge of the difcipline of the
Druids, into which the refining fpirit
of that people had introduced innova-
tions. Nothing is then worfe founded
than an opinion induftriotifly propaga-
ted by many writers, who, neglecting
reafon and hiftory, and guided only by
prejudice, have aflerted (8), that the

firft

(7) Ctffar, lib. 6. c. 13. Difciplina (Druidum)in Bri-
tannia reperta, atque inde in Galliam tranflata efTe, ex-
iftimatur : et nuric, qui diligentius earn rem cognofcere
volunt, plerumque illo, difcendi caufa, proficifcuntur.

(8) See Brady's anfwer to Petyt, Filmer's Patriarcha,
and other writings for prerogative. The writers on this
fubjeft Teem to confound the firft ftate of the Britains with
that in which they afterwards appeared, when conquered
by the Romans. Tacitus fays exprefsly, " Ipfi Britan-
ni deleitum, ac tributa, et injundla imperil munera im-
pigre obeunt, fi injuri^ abfint : has aegre tolerant, jam do-
niiti ut pareant, nondum ut lerviant." dgr. c. 13. And
Dion, or Xiphiiin, in the life of Severus, obfcrves to the
fame purpcfe : " Apud Britannos populus magna ex
pane principatum tenet.1' The writers juft now refer-
red to, by endeavouring to found the royal prerogative

fe

of Germany and Britain. 53

firft government of the Britains was
regal and defpotic : an opinion from
which they infer the abfurdefl confe-
quences.

When the ambition, however, or
avarice of Caefar (9), had brought him
to our ifland, and fucceeding Emperors
were fired with the glory of fubjecting
it to their arms (10), the inhabitants

loft

fo high, think to prove, that the liberty we enjoy was
derived from the conceffions of our monarchs. But al-
lowir.g that the ancient Britains were fubjefl to the arbi-
trary will of kings ; that this was alfo the csie with the
Anglo-Saxons ; that William I. was a conqueror ; and
that the power of the people leiTened the defpotifm, and
detracted from the dignity of our kings ; can it yet be
fuppofed, that their conceffions would form a cc<n(litution
fo wife and confiftent in all its parts, as that of Eng-
land ?

(9) Suetonius fays of Casfar, " Britanniam petiiiTe fpe
margaritr.rum, quarum amplitudinem conferentem inter-
dum fua manu exegifTe pondus." Vit Ceef. c. 47. And
Tacitus gives fome colour and ilrength to this opinion,
when he obferves, " Pert Britannia aurum et argtntum,
et alia metalia, pretium viiloria!. gi^nit et Oceanus mai-
garita, " Agr. c. 12.

(ic) The Britains were net eafily fubdued. Carfar,

though remarkable for the modefly with which he fcldom

E 3 fails

54 Of the Ancient Inhabitants Part L

loft their liberty and independence.
They were diftracled in their coun-
cils (n), and inattentive to the policy
of confederating their communities, and
became an eaiy prey to a watchful
and warlike invader. When prefied
hard by the Roman governors, they dif-
covered their inferior force : and, flat-

fails to mention himfelf, muft not be altogether trufted
with regard to his fuccefs againft this people. Strabo,
lib. 4. obferves of him, <c Divu« Ccefar bis in earn infu-
Jarn trajecit, ac mox reverfus cii, nulla magna re con-

fecla ; neque longe in infulam pogreffus." An4

Lucan fays,

*' Tcrrita qusfitis oftendit terga Britannif/' UL. 2.

It is Tacitus who gh'es the trued: account of this rrnt-
ter: " — Primus omnium Romanorum D. Julius cum
exercitu Britanniam ingrcfTus, quair.qur.m protpera pugna
tcrrucrit incoias, ac litore potitus fit, potefl vi-'
ciiTc; pofleris, non tradidiffe." — And he adds afterwards,
" Divus Claudius auclor opens." — Agr. c. 13.

(I i) Tacit. Agr* c. 12. Nee aliud adverts validifTimas
gentes pro nobis utiiius, quam quod in commune non
confJunt. Uurus duabus tribufvc civitatibus ad propul-
far.durn commune periculum conwcntus : ita dura finguli
pu^nant, univerfi vincuntur.

8 tered

Sect 5» of Germany and Britain. 55

tered (12) by the mild treatment their
nations received on fubmitting, they al-
lowed themfelves to be reconciled to the
Roman dominion. Agricola, difcoura-
ging their fcattered and diftant way of
life, which ferved to keep alive their
warlike attachments, inftru&ed .them in
civility and arts. The Roman language
came to be known in Britain, and was not
only fpoken with eafe, but even ftudied
for the purpofes of eloquence (13) ; the
Roman drefs, and the Roman manners,

were

( 1 2) Tacit. Agr. r. 16. " Didicere jam barbari quoque
ignofcere vitiis blandientibus." Id. hijl. lib. 4. c. 64.
" Inflituta cultumque patrium," (aid the Tenfleri to the
people of Cologne, " refumite, abruptis voluptatibus,
quibus Romani plus adverfus fubjeftos quam armis va-
lent."

(13) Id. c. 21. Namque ut homines diTperfi ac
rudes, eoque bello faciles, quieti et otio per volupta-
tes afTuefcerent : hortari privatim, adjin'are publice, ut
templa, fora, domus extruerent, laudando promptos, et
caftigando fegnes. ita honoris aemulatio, pro neceflltate
erat. Jam vero principum filios liberalibus artibus eru-
dire, et ingenia Britannorum *fludiis Gallorum anteferre,
ut qui modo linguam Romanam abnuebant, eloquentiam
concupifcerent. inde etiam habitus noftri honor, et fre-

E 4. quens

56 Of the Ancient Inhabitants Part L

were affe&ed ; and our deluded proge-
nitors even proceeded to exert themfelves
v in a vain emulation, to excel their ene-
mies in the luxury of the table, the
fumptuoumefs of buildings, the ele-
gancy of baths, and all the practices
of an effeminate voluptuoufnefs. Wars
were no longer the purfuit and amufe<
ment of their youth : military trophies
and military honours no longer gave
dignity to the aged. Yielding to the
Roman manners, rather than conquered
by the Roman arms, they forgot the
value of liberty, and ftooped in a tame
fubjedtion to the will of kings (14),
who, railed by the power of that people,
advanced their progrefs, and facilitated
their government in this ifland.

quens toga, paulatimque difceflum ad delinimenta viu'o-
rum, porticus, et balnea, et conviviorum elegantiam. id-
que apud imjperitos bumanitas vocabatur, cum pars fervi-
tutis efllt.

(14) 'Tacit. Agr. c. 14. Qusedarn dvitates Coglduno
regi donatae. is ad noftram ufque memoriam fidiffimus
rranfit, vetere ac jam pridem reccpta pcpuli Romani
confuetudine, ut habeiet in^rumenta fervitutis et reges.

But,

Sect. 5. of Germany and Britain. 57

But, in the courfe of time, that illu-
ftrious nation, which had ftretched its
empire fo widely, and rifen to fuch a
height of greatnefs, being, itfelf about
to be overthrown by the barbarians,
who afTailed it on every fide, the Em-
perors were obliged to recall all the di-
ftant legions, who maintained, or were
extending their conquefts. The Roman
troops were thus removed from Britain;
and the Pids and Scots broke over the
Roman wall, wafted the fields of their
im v. i ,hbours, and filled every

place where they came with carnage and
deftrudion. The Britains had recourfe"\
in this extremity to the Romans ; who, \
moved with miicries which themfelves I
had occaiioneii, feveral times aiTiftcd
them to repel their enemies : but too
much harafTed and employed at home,
they at length found it neceflary entire-/
ly to abandon them. Reduced to deW
fpair, the abject Britains looked around V
for a nation to protecl: them ; and, lift- \
en ing to the pufillanirnous advice of

Vortige.ju> >

5 8 Of the Ancient Inhabitants Part I.

Vurtigern, they fent to the Saxons,
\vliofe fame was at that time confider-
able, who were mighty at fea, accu-
flomed to war, and unemployed. Hen-
gift and Horfa arrive with troops to
their affiftance : they march againft the
Picts and Scots ; and, obtaining an eafy
victory over them, the Britains pleafe
themfelves in profpecl: with the peace
and fecurity which they are to enjoy,
while guided by the counfels, and de-
fended by the arms of that valiant
people. Thefe commanders, however,
perceiving their negligence and degene-
racy, and allured by the riches of the
foil, and the hopes of a bloodlefs con-
qucfl, entertain thoughts of fettling in
this ifiand. Their countrymen, adver-
tifed of their defign, reinforce them in
great . bodies ; and, joining with the
Pids and Scots (15), they commence
hpftilities with the Britains. It is not
to our purpofe to give 4 detail of the
lierce wars which enfued : it is fufficient

(15) Hume's hiil. vol. i.

to

Se#. 5. of Germany and Britain. 59

to remark, that they Bended in the al-
moft total extirpation of the Britains
(16), and in the eredion of the Saxon
heptarchy.

The Saxons brought along with them
into Britain their own cuftoms, lan-
guage, and civil inftitutions. Free in
Germany, they renounced not their in-
dependence, when they had conquered.
Proud from victory, and with their
fwords in their hands, would they fur-
render their liberties to a private man ?
Would temporary leaders, limited in.
their powers, and unprovided in rc-
fources, ever think to ufurp an authori-

(16) No conqurft made by any tribe of.the barbarians
was half ft terrible as that of the Saxons. The other
rations lived and mixed with the ar.cicnt inhabitants of
the countries they fubdued : but the Kritains were fo en-
tirely exterminated, that few traces remain of their own
laws, and peculiar cuftoms, or of thofe which were irn-
pofed on them by the Romans. And pbilolugcrs have
o'cferved, that there is not a lingle Sritijb word in our
language. The Saxons were forced to this policy by the
obtlinate rcfiftar.ce of the Britains and in order to give
territory and fubfiftence to thofe numerous bodies of their
CQ,.r,i;yniC!; v Lc came over into England.

60 Of the Ancient Inhabitants Part I.

ty over warriors, who cenfidered them-
felves as their equals, were impatient of
controiil* and attached with devoted
zeal to their privileges ? or would they
find leifure to form refolutions, or op-
portunities to put them into practice,
amidft the tumult and confufion of
thofe fierce and bloody wars, which
their nations firfi: waged with the Bri-
tains, and then engaged in among
themfelves ? Sufficiently flattered in
leading the armies of their country-
men, the ambition of commanders
v.juld as little fuggeft fuch defigns, as
the liberty of the people could fubmit
to them. The conquerors of Britain
retained their independence; and this
HI and law itielf again in that free ftate
in which the Roman arms had difcover-
eel it. .

The fame firmnefs of character, and
gcnerofity of manners, which in gene-
ral tiiftinguUhed the Germans, were
pollened in an eminent degree by the
Saxons ; and while we endeavour to
unfold their political inflitutions, we

muft

Sect. 5- of Germany and Britain. 61

muft perpetually turn our obfervation
to that mafterly picture in which the
Roman hiftorian has defcribed . thefe na-
tions. In the woods of Germany mall
we find the principles which directed
the ftate of land in the different king-
doms of Europe ; and there fhall we
find the foundation of thofe ranks of
men, and of thofe civil arrangements,
which the barbarians every where efta-
blifhed ; and which the Englifh alone
have had the good fortune, or the fpirit,
to preferve.

AN

A N
HISTORICAL DISSERTATION

Concerning the ANTIQUITY of the
ENGLISH CONSTITUTION,

PART II.

Of the State of Land in the Ger-
man and Gothic kingdoms.

SECTION I.

Of the origin and progrefs of the Feudal
Polity.

THE ftate of land in the Ger-
man and Gothic kingdoms has
been chiefly regulated by
the feudal polity : and this fyftem, fo
important and interefting, has been

often

Sed. i* Qfthejlate ofLand* &c. 6j

often examined with equal ingenuity
and learning. But authors, not at-
tending to the earlier hiftory of the
northern tribes, have generally afcri-
bed its origin to their conquefls. It
exifted, however, at a higher period ;
and before they had fallied from their
woods, it directed their political con-
duct, and the confederacies into which
they entered. The appearances it ex-
hibited on their conquefts, and its after
progrefs, were but the improvement of
inftitutions to which they had formerly
been accuftomed.

It may feem to a fuperficial obferver,
that the great number of nations with
which Gaul and Germany were peopled
had little or no connection with each
other ; and that, depending on their
own force and arms, they fought their
battles unaffifted by thofe leagues and
alliances which take place in more po-
liihed times. Infmcerity, it may be
thought, and want of cultivation, con-
cealed from them the knowledge, or re-
{trained them from the practice, of

1'uch

64. Of thcjiatc of Land in the Part II.

fuch arts. No conclufion, however, is
more rafh, or is lefs fupported by hifto-
ry. Csefar and Tacitus perpetually con-
tradicT: it. Thefe hiftorians inform us,
that the Gaulic and German nations
were often linked together among them-
felves in the clofeft confederacy and
union ; and they furnifh frequent ex-
amples of thefe connections.

The Ceutrones, fays Csefar, the Gru-
dii, Levaci, Pleumoxii, and Geiduni,
were under (i) the protection and tu-
telage of the Nervii. The Segufiani,
Ambivareti, Aulerci Branno vices, and
the Brannovii (2), had joined them-
felves to the Jidui. The Senones (3)

had

(i) CxfardeB. G. lib. 5. c. 38. fe? 39. Facile— Nerviis
perlaadet. league, confeftim dimiflis nunciis ad Ceutro-
nes, Grudios, Levacos, PJeumoxios, Geidunos, qui
omnes fub eorum imperio funt, quam maximas manus
pofiunt, cogunt: —

(z) Id. lib. 7. c. 75. Imperant ^duis. atque eorum
clientibiis, Segufianis, Ambivaretis, Aulercis Brannovi-
cibus, Brannoviis, millia xxxv. ; —

(3) Id. lib. 6. c. 3. £«f 4. Eodem die cum legioni-

bus in Senones proiicifcitur, magnifque itineribus eo per-

venit.

Sect, i. German and Gothic kingdom t. 6$

had alfo intrufted themfelves to the care
of that people : and the Carnutes (4)
had formed connections with the Rhemi.
The Arverni were the guardians (5) of
the Eleutheri Cadurci, Gabali, and Ve-
launi. The Eburones (6) and Condru-
fii were the client es of the Treveri : and
even all the ftates of Gaul, when Cse-
far firft entered it (7), were divided into
two powerful factions, which mutually

venit. — Legates, — deprecandi caufa, ad Casfarem mit-
tunt; adeunt per ^Eduos, quorum antiquitus erat in fide
ci vitas.

(4) Gafar de E. G. lib. 6. c. 4. Eodem Carnutes le-
gatos obfidefque mittunt, ufi deprecatoribus Rhemis, quo-
rum erant in clientela; —

(5) Id. lib. 7. c. 75.— ^parem numerum Arvernis,
adjunftis Eleutheris Cadurcis, Gabalis, Velaunis, qui fub
imperio Arvernorum efle confuerunt ;

(6) Id. lib. 4. c. 6. — in finis Eburonum, et Condru>
forum, qui funt Treverorum clientes, pervenei-ant.

(7) Id. lib. 64 c. ii. &f 12. — namque omnes civitates
in partes divifae funt duas. Quum Csfar in Galliam
venit, alterius fa&ionis principes erant ^Edui, alterius
Sequani.

F contended

66 Of the flat e of Land in the Part II.

contended for dominion. The JEdui
were at the head of the one faction, the
Sequani at that of the other ; and the
fuperiority remained with either of thefe
people, in proportion to the number and
ftrength of the communities attached to
them.

By fuch connections, which the tribes
in Gaul and Germany could form for
their defence, a political equality was
preferved between nations of unequal
power and advantages ; and civil inter-
courfe was kept exifting in countries,
where the more populous and over-
grown focieties would otherwife have
deftroyed and fwallowed up the infe-
rior ones. Policy, as well as paflion,
was a fource of war ; and thefe bar-
barians, perceiving the convenience and
utility which refult from balancing the
power of nations, attained, in part,
that happy fecret, which, in later times,
has been employed with fo much fuc-
cefs to give peace and fecurity to Eu-
rope.

But

Sect. r. German and Gothic kingdoms. 67

But what were the circumftances
which more immediately fuggefted thefe
connections ? and by what principles
were they regulated ? One tribe, ha-
ving conquered another, the territories
of the variquifhed accrued to the vic-
tors : but, unacquainted with a private
property in land, the chiefs or warriors
of the expedition feized not pofTeflions,
on this occafion, which might advance,
or continue their greatnefs. Accuftom-
ed (8) to join land with a large and
correfponding object, their imaginations
could only connect it with communi-
ties. To what end, however, would
they add this new acquifition to the
other poffeflions of their ftate ? They de-
fpifed agriculture, and the arts of peace ;
and their own feats furnifhed them with
more territory than they enjoyed, or
laboured. To retain it, alfo, for any
length of time, was impoffible; and

(8) I have (hown, in the forrrer part, that land was
firft the "property of nations.

F

68 Of thejlate of Land in the -Part II.

new conquefts, and new feats, called
them to another quarter. Muft they
drop then the laurels they had gathered,
and, allowing the vanquiihed to recruit,
receive nothing by their victory but toils
and lofles ?

The cafe was critical and preffing ;
and they embraced an expedient, the
only one fitted to their purpofe, and
which alone could occur to a warlike
people in fuch a fituation. They fup-
pofed their community to be veiled in
the conquered territory, and returned
the ufe of it to the vanquifhed (9), an-
nexing the burden of affifting them in
their wars. And when the idea of gi-
ving fervice for land had been gradual-
ly evolved, inferior and feeble nations,
not waiting for the medium of con-
queft, refigned their lands to a power-

(q) It is exprefsly mentioned in fome of the examples
juft now cited, that the inferior tribe furnidied afliftance
to the fuperior one ; and the fa6l is perfedly clear from
the whole of the German and Gaulic hiliory.

fui

Sed. i. German and Gothic kingdoms. 69

ful people (10), receiving them back
again with protection. Hence thofe
connections which every where fub-
fifted both in Gaul and Germany.
The fafety of the vanquifhed, or infe-
rior ftate, made it ready to fubmit to
this kind of homage ; and the pride
and ambition of the vidors, or more
powerful people, made them fond to
impofe it. Thus fervice for land being
ftipulated on one fide (11)5 and pro-

tedion

(10) The prefents, perhaps, which one nation was in ufe
to bellow on the chiefs of another, were the marks of its
fubmiffion : and the eleSti equi^ magna arma, pbaJer^e, tor-
quefque, (fee Tacit, de M. G. c. 1$.), of which thefe
prefents confided, refemble very much the more modern
fymbcls or expreffions of vaflalage. It is certain, at leair,
that the fuperior nation impofed a tribute on the inferior
one. " Ambiorix," fays Cafar, HI. 5. c 27. " in hunc
modum locutus eft : fefe, pro Caefaris in fe beneficiis, plu-
rimum ei confiteri debere, quod ejus opera ftipendio libe-
ratus effet, quod Aduatucis, finitimis fais, penderc con-
fuefiet ; — " It feems likewife to have been a practice for
a fuperior nation, in fome inPances, to impofe a king
on its vaffal. Of this there is an example in Li<vy> lib. 5.
c. 34.

(i i) Some of the Roman Emperors appear to have ad --pt-

ed this way of thinking. Severus, for example, dirtributed

F 3 land

70 Of thefiate of Land in the Part II,

teclion afforded on the other, the firm-
eft attachment was produced between
nations, who, warlike themfelves, or
amidft warlike neighbours, were either
extending their arms, or defending their
territories.

So generally had this practice prevail-
ed, and fo deeply rooted was this way
of thinking, that the Ufipetes and
Tenchtheri, two German tribes, who
had fled from the oppreffion of the
Suevi, to feek a fettlement in Gaul,
where they were oppofed by Caefar, fent
to acquaint that commander (12),
" That if the Romans, accepting their

alliance,

land to his foldiers, under the condition of military fer-
vice t and he ordained, that all perfons who led a private
life Ihould be particularly excluded from fuch land. See
farther Les Rechercbes de la France, par Pafquier, foL
}. 122. Setters' Titles of Honour , or Lampridius in wit.
Severi.

. (12) Cetfar, lil. 4. c. i. & 7. — Ufipetes German}, et
item Tenebtheri, magna cum multitudine hcminum, flu-
men Rhenum traniierunt, non longc a mari, quo Rhenus
influit. Caufa tranfeundi fuit; quod ab Suevis complu-

Se£L T » German and.Gothic kingdoms. 7 j

alliance, would aflign them land to
cultivate, they might ufe them in wars,
in which their valour would be of the
greateft advantage." In like manner
(13) the Cimbri, Theutoni, and Tigu-
rini, who had been forced from their

res annos exagitati, bello premebantur, et agricultura
prohibebantur. — Legati ab his venerunt. quorum hsec
fuit oratio. " Germanos neque priores populo Romano
bellum inferre; neque tamen recufare, fi laceflantur,
quin armis contendant : quod Germanorum confuetudo
hzec fit a majoribus tradita, quicumque bellum inferant,
refiftere, neque deprecari : hsec tamen dicere, veniflc in*
vitos, ejeftos domo. Si fuam gratiam Romani velint,
pofle eis utiles efle amicos : vel fibi agros adtribuant, vel
patiantur eos tenere quos armis pofiederint ; fefe unit
Suevis concedere ; — reliquum quidem in terris efle nemi?-
nem, quern non fuperare poffint."

(13) Florus, HI. 3. f. 3. " Cimbri, Theutoni, atque
Tigurini, ab extremis Gallic profugi, cum terras eorum
inundafiet Oceanus, novas fedes toto orbe quaerebant :
exclufiquejGallia et Hifpania, cum in Italiam remigra-
rent, mifere legatos in caftra Silani ; inde ad fenatum,
petentes, Ut martins populus'1 &c. This pafTage of Floras

has been remarked by Selden and Blackftone, (fee

Titles of Honour, part 2. and Commentaries on the Law
of England, book 2.) Bjt thefe authors, not confider-

ing that land was firft the property of nations, have failed

jn explaining it.

F 4 country

72 Of the ft ate of Land in the Part II.

country by the inundation of the
ocean, having entered Italy, peti-
tioned Silanus, and afterwards the Ro-
man Senate, for lands to be held by
this fervice : Ut martins populus aliquid
ftbi terras daret quafi ftipendium : c<e-
terum, ut vellet, manibus atque armisfuis
liter etur. And the Romans, learning this
method from the barbarians, actually
employed it to bind to them nations
that were too fierce to pay tribute or
taxes. Exempti^ fays Tacitus ( 14) of the
Batavi, oneribus et collationibus^ et tantum
in ufumprozliorumfepojiti-t velut tela at^
que arma, bellis refervantur. It is add^-
ed (15)5 Eft in eodem obfequio et Mattiaco-
rum gens. Such, then, we may well

(14) de M. G. c. 29. Omnium harum gentium viitute
praecipui Batavi, non multum ex ripa, fed infulam Rheni
amnis colunt, Cfittorum quondam populus, et feditione
domeilica in eas fedes tranfgrefTus, in quibus pars Roma^
ni iniperii fiercnt. Manet honos, ec antique focietatis

. jnfigne. nam nee tributis ccntemnuntur, ncc publkanqs
atterit, Exe > pti oneribus, &c.

(15) Id. Sede finibufque in fua ripa, mente

Bnimoque nobifcum agunt, cactera fimlles Batavis, nili
quod ipfo adhuc terra; fu^ fulo et ccelo acrius animantur.

conclude

Se#. I. German and Gothic kingdoms. 73

conclude was the firft appearance un-
der which the feudal fyftem prefented
itfelf. While land was yet the property
of ftates (16), tribes were the vaflals of
tribes.

Amidft the filence, however, of an-
cient hiftorians, and the remotenefs and
obfcurity of the times, it is impoffible
to determine concerning the continuance
or duration of the feudal connexions
among the ftates of Gaul and Germany ;
and concerning the maxims by which,

(iLl It is furprifmg how a writer, fo profound and pe-
netrating as Monte fquieu, ( L'efprit des Loix, Iz<v. 30.
cb. 3-)» could find fefs in the war-horfes and frameas,
which the German princes beftowed on their retainers ;
and thence imagine, that re.ainers were the vffffbfs of
princes. If military fervice had been the cuftomary and
requifite return for fuch gifcs, fefs aiuft have been com-
mon to every warlike people. But this opinion is not
peculiar to Moniefquieu. Pafquier has given an account
of one very like it, which its author fee msto have fup-
ported very ingenioufly. See Recherches ds la France,
li*u, 2. cb. 15, The other notions on the rife of feuds
are ftill, perhaps, worfe founded. The reader may fee
them in Craig^ lib. i . in Sfielman <voc, Feodum, and in the
Croud of authors who write on this fubjeft.

under

74 Of the JIatt of Land in the Part tf.

under certain circumftances, they were
regulated. The importance of the Tub-
je£t calls for the fulleft and moft ample
difcuffion ; but a dark antiquity con-
ceals it from remark. Yet the fyftem,
we may eafily imagine, could not be
governed, in fuch a period, by rules ve-
ry nice or intricate. The neceffities
and advantages of ftates induced them
to enter into alliances ; but their fitua-
tion, it is probable, allowed not thofe
alliances to fubfift for any time. Tribes,
ever changing their territories (17),
were conftantly withdrawing from the
protection of tribes ; nations, advancing
in greatnefs, were making off the de-
pendence to which they had fubmitted,
and afpiring to a dominion over na-
tions ; and accident and caprice were e-
ver giving occafion to fudden and un-

(17) Tacitus, on obferving that the Gauls might have
patted into Germany, makes the following remark :
«' Quantulum enim amnis obftabat, quo minus, ut quae-
que gens evaluerat, occuparet permutaretque fedes pro-
mifcuas adhuc, et nulla regnorum potentia divifas ?"

expeded

. I. German and Gothic kingdoms. 75

expected revolutions. Their own inter-
eft, therefore, and convenience, more
than fixed or certain laws, may have
guided the connections of commu-
nities.

The fluctuating ftate of thofe nations
continuing no longer when they had
fettled in the Roman provinces, their
conduct and affairs acquired greater
form and order. They diftinguimed
their territories by known and determi-
ned boundaries ; they directed their e-
mulation by other views than military
glory ; and yielding to the influence of
new and unexperienced circumflances,
their fyftem aflumed a more regular a-
fpect j and fp reading in a moment over
Europe, overturned the forms and pro-
ceedings of the Roman law.

Rude, originally, and fimple, their
inftitutions feemed folely calculated for
the practice of arms ; but they advan-
ced in method and intricacy, as thofe
objects multiplied, which attract the
ambition, and divide the purfuits, and

the

76 Ofthejlatc of Land in the Part II.

the cares of men. Ages rolled on ; al-
terations and additions took place ; one
improvement fuggefted another ; and
indignant, or applauding (18), we be-
hold, in its progrefs from the 'forefts
of Germany to its final perfection, that
prodigious fabrick which has been the
caufe of fo much misfortune and advan-
tage.

The northern tribes abandoned, as by

(18) The author of the Spirit of La<ws introduces his
account of the feudal fchcrne with the following beauti-
ful defcription of it. " Je croirois qu'il y suroit une im-
perfedion dans mon ouvrage, fi je paflbis fous filence ua
evenement arrive une fois dans le monde, et qui n'arri-
vera peur.-etre jamais ; fi je ne parlois de ces loix que Ton
vit paroitre en un moment dans toute TEurope, fans
qu'elles tinilent a celles que Ton avoit jufques alors con-
nues ; de ces loix qui ont fait des biens et des maux in
finis ; qui ont laifTe des droits quand on a cede le do-
maine ; qui, en-donnant a plufieurs perfonnes divers
genres de feigneurie fur le meme chofe ou fur les memes
perfonnes, ont diminue le poids de la feigneurie entiere ;
qui ont pofe diverfes limites dans des empires trop eten-
dus ; qui ont produit la regie avec une inclinaifon a 1'a-
narchie, et Tanarchie avec une tendance a Tordre et a
rharmonie." This defcription is (hort ; but it comes from,
the pen of Montefquieu. Vefprit des Loix, liv. 30. cb. i.

concert,

Sect, i. German and Gothic kingdoms 77

concert, their own habitations, to fix e-
ftablilhments in the Roman provinces :
and the hurry and agitation of mind,
which times of tumult and alarm never
fail to produce, and the diforder infe-
parable from great bodies of men ; the
clangers which threatened them, and
the hopes they conceived ; ignorance of
the countries in which they found them-
felves, and furprife at the progrefs they
had made ; all joined to turn their at-
tention towards the leaders who con-
ducted their enterprifes, and fhared
their toils. Thefe were the ties which
bound them together ; and the multi-
tude of warriors, irrefolute and waver-
ing, depended on their wifdom for di-
rection. The formation of courts, as
in their own countries, was not prefent-
ly attended to ; nor perhaps was expe-
dient : and, ignorant of commerce, and
profefled enemies to taxes (19), they

knew

(19) The Gothini and Ofi, fays Tacitus, were not
German nations, as they fubmitted to be tributary :

" Gothinos

78 Of the Jiate of Land in the Part II;

knew not thofe fources of order and
government which are applied to in cul-
tivated times. In this fituation, military
men, in love with the virtues of their
princes, and yielding them during war
an unlimited fubrmflion, were induced,
by the eafieft tranfition, to confider them
as reprefenting their ftates or nations.
Land, which formerly belonged to com-
munities, was now vefted in leaders ;
and grants of territory (20), which tribes
at firft beftowed on one another, flowed
to individuals.

The

" Gothinos Gallica, Ofos Pannomca lingua, coarguit non
efle Germanos ; et quod tributa patiuntur : partem tri-
butorum Sarmatae, partera Quadi, ut alienigenis, impo-
num." De M. G- c. 43.

(20) Hence arofe the notion, that a feudal kin* was
proprietor of all the lands in his kingdom j a notion
which the advocates for tyranny have fondly inculcated*
The fpecious {how of power, which this notion afcribes
to a monarch, is, at firft view, very apt to impofe ; but
vanifhes the moment we afcend to its origin. Land ori-
ginally belonged to nations or bodies of men, and after-
wards devolved to the reprefentatives of thofe nations or
bodies of men : and if liberty was enjoyed in the One
cafe, there is little doubt but it was enjoyed in the other.

To

Sed. i • German and Gothic kingdoms. 79

The office of a general, which before
was uncertain and temporary, was now
continued during life ; and command-
ers were diftinguifhed by the more
pompous appellations of Kings and M0-
narchs. Their powers, however, were
narrow and limited ; and they retained
but a fcanty proportion of territory.
The expences of government were as
yet inconfiderable ; and royalty awed
not with its luftre. The remainder
was affigned to inferior orders ; and the

To fuppofe, that land immediately defcended from na-
tions to individuals, is extremely unnatural ; and not left
fo is it to fuppofe, that it devolved exclufively to one
man, and that in this man were lodged the riches and the
power of a whole people. The mind pafles not eafily
from great objects to frnall ones : and the principles of
analogy and refemblance are ever directing, in the diffe-
rent ftages of refinement, the varying conceptions and o-
pinions of mankind.

It confifts, however, with the prejudices of authors to
adopt this opinion ; and Loyfeau, Dubos, and Chante-
reau le Fevre, have written learned volumes to fupport
it. The appearances of liberty which the laws and the
hiftory of the barbarians are perpetually prefenting, theft
writers confider as ufurpations or. royalty.

allotments

8o Of the Jlate of Land in the Part IL

allotments to the great correfponded to
their dignity and fervices. Thefe again
parcelled out their lands to their re-
tainers (21): and as military fervice
was connected with land in Germany,
when given by one tribe to another ;
fo it was not now forgot to be annex-
ed to the grants of it. Every man was
to furniih a force fuitable to his ability
and poffeffions ; and he performed with
chearfulnefs a tafk fo fitted to his tem-
per. In the countries of enemies whom
they had not exterminated, and alfo
expofed to danger from nations like
themfelves, who, invited by their fuc-
cefs, might come in fearch of fettle-
ments, it was neceflary they mould be
in a poflure of defence. And, ambi-
tious to excel in the arts of war, all
men were fond of a government, which
flattered their inclinations, and pleafed
their pride, by the military fervice it

(21) See Dr. Robertfon's hiftory of Scotland, b. i. ;
Hume, Appendix 2. j Wright on Tenures, ch. i. ; and
the Glofiaries.

injoined,

Seel, i. German and Gothic kingdoms. 8 1

injoined, and the fubordination it efta-
blifhed. Hence princes, on the fmalleft
alarm of danger, could foon aflemble
a ftrength to repel it; and thus they
fixed themfelves in territories which their
valour procured to them:

The gifts of land, at firft precarious,
followed the will of the grantor. In
this ftate, the partiality of fovereigns
to relations, their weak and frivolous
attachment to favourites, their whim,
their vanity, and refentment, made
them conftantly recall, and give away,
what they fuppofed was the grant of
their bounty. The warlike qualities of
a vaflal, which in titled him to remain
in his fief, furnifhed often the grounds
of his difmiffion : difguft followed on
neglect; and where (22) princes were

(22) The following law is a proof that intereft prevail-
ed very much in the conferring of benefices ; and it could
not but prevail, in a higher degree, when the grants of
land were more dependent. Capitul. KarcL et Ludo<v.

Imp. lib. 5. /. 224. " ut nullus de confiliariis nollris,

propter beneficium cuilibet a nobis impetrandum, mu-
nera accipiat : quia nos volumus illi beneficium dare,
cjui nobis bene fervierit."

G mod

8s Of the Jl ate of Land in the PartIL

moft courted, there they beftowed their
favours. The retainers of the feudal lord,
among whom he had fubdivided his
fief, felt ftrongly his lofles, and fhared
in his difgrace ; but being attached to
his perfon, they could not think to quit
him in misfortune, or renounce the
train in which they had been diftin-
guifhed; and his munificence was not
equal to fupport them. The fpirits of
men were inflamed by oppofition, the
fafhion of the times allowed them to
refill, and they fet themfelves to humble
their princes.

The firfl advantage extorted from fo^
vereigns, by this direction of the uni-
ted powers of lords and retainers, was
a confirmation to the former of their
grants for the year. But why, it may
be afked, was a year in particular the
time allotted ? A cultivated people, to
whom the moft extenfive notions of pro-
perty are familiar, would, in fuch a
iituation, have claimed and acquired the
entire difpolal of their poffeffions. The
barbarians, however, had no fuch know-
i ledge

Se£t i. German and Gothic kingdoms. 83

ledge of a private property in land ; and
their communities in Gaul and Germa-
ny, having yearly cultivated a riew piece
of ground (23), the diftributions of tei>
ritory to individuals were at that time
annual. Land too, producing flowly its
fruits, a vafial, if his fief was recalled
within the year, was fubjecled to lofs :
the king's officers, it may be added, re-
commended themfelves by an attention
to find pretences to remove him (24) ;
and the fmalleft (25) were fufficient*
Hence ancient cuftom, and the reafon
of the thing, fuggefted, that fiefs fhoulS.
advance from being uncertain to be
annual.

The lords and retainers were not like-*;
ly to flop in their acquifitjons. The

(23) See part i. fe£t 3.

(24) Beneikia qualiter adminiflrentur, inqajrant fnifB,
Capit. 3. ///. 8 1,

(23) See L L. Longob. lib. 3. tit. 8. 1. j. or the above*
cited Capitulary, lib. 4. tit. 38. ap. Lindenbr,

G 2 employments

84 Of the ft ate of Land in the Part II.

employments of peace were rifing gra-
dually in repute ; commerce was begin-
ning to fhow itfelf ; and the knowledge
and the love of wealth were introduced.
Defires and wants had multiplied ; and
demands to gratify them were frequent
and prefling. Hence fiefs were next
continued for a term of years. Fur-
nifhed now with opportunity and en-
couragement, men bellowed their atten-
tion and labour on particular places.
The time of the grants elapfed flowly :
but princes forgot not to recall them ;
and vaflals gave up, with a double re-
luctance, poflefiions, which were in-
creafed in their value, and for which
they had contracted a fondnefs. The^
therefore proceeded to demand, and
were allowed to enjoy them during life.
The defendants of vaflals were now
ambitious to fupport, and to emulate
the luftre of their anceftors ; and the
places of their birth, and the fcenes of
their youthful pleafure and amufement,
drew them with a fecret charm. Hence

the

Se£t i . German and Gothic kingdoms, 85

the fon (26), grandfon, brother (27),
and more diftant relations, came to
claim and poffefs the grant. Fiefs, at
different times, and in different places,

defcended

(26) It appears, that in early time?, when a feud was
granted to a vaflal and his ions, all the fons fucceeded in
capita : " Feudum asqualiter ad omnes fllios pertinet,"
fays a commentary on the books of the fiefs ; and, on
the failure of any of them, the vacant fhare returned
to the lord. See Wright on Tenures ', p. 17. It ap-
pears likewife, that a lord might advance to the feud
the fon the moft agreeable to him. See lib, feud. i.
tit. i. -But as the eldeft fon was fooneft able to bear
arms, and to perform ferviccs, it feemed hard to deprive
him of the land ; and the right of primogeniture was
acknowledged. I need not remark, that infants, women,
and monks, as incapable of military fervice, were in fuch
times excluded from feuds.

(27) Thefe changes a/remarked diftindtly in the books
of the fiefs. Lib. feud* i. ///. i. " Antiquiffimo tem-
pore fie erat in dominorum poteftate connexum, ut quan-
do vellent poflent auferre rem in feudum a (e datam.
Poftea vero eo ventum eft, ut per annum tantum firmi-
tatem haberent. Deinde ftatutum eft, ut ufque ad vi-
tam fidelis produceretur. fed cum hoc jure fucceffionis
ad filios non pertineret, fie progreflum eft, ut ad filios
deveniret : in quern fcilicet dominus hoc vellet benefi-
cium confirmare. Quod hodie ita ftabilitum eft, ut ad
omnes acqualiter veniat. Cum vero Conradus Romam

G 3 proficifceretur,

86 Of the Jl ate of Land in the Part IL

defcended to feveral generations, fome-?
times in a lineal, fometimes in a colla-
teral fucceflion. Princes, perpetually
difappointed, grew carelefs of refu-
ming grants, which the power of the
fubjecl: was perpetually extending. Li-
mitations were at length neglected ;
and the remoter heir was, without in-?
termiffion, inverted in the grant.

The inferior fiefs followed conftantly
the fate of the fuperior ones. Lords
parcelled out their land in the form in
which they received it (28) : and thofe

advantages

prqBcifceretur, petiturn eft a fidelibus qui in ejos cranf
fervitio, ut lege ab eo promulgata, hoc etiam ad nepotes
ex filio prqducere dignaretur, et ut frater fratri ilne le-
gitimo herede defun&o (vel filius) in beneficium quod eo-
rum patris fuit, fuccedat." See farther the Ccnfiitutions
of Conrad, lib, feud. 5. tit. I. or Llndenbr. p. 679.
The reader may alfo confult Montefquieu, liv. 30. cb. 16.
Hume, jfypendix 2. Speltnan woe. Feodurq. Dclrytnple,
^.5. fi 3. i. and Craig, lib. I. dieg. 4.

(2?) It may be proper to mention, in this place, the
different names which accompanied and diftinguifned this
progrefs of the feudal law. When feuds were in their
&# and mqft dependant ftate, they were called nmner%\

when

Seel, i. German and Gothic kingdoms. 87

advantages were fucceflively communi-
cated to retainers, which their influence
had affifted to produce.

It was thus that land was firft con-
nected with fovereigns : it was thus that
it devolved to the people. The con-
fined notions of property peculiar to a
barbarous age, and the particular fitua-
tion of the conquering nations, fubftitu-
ted leaders in the place of communities :
An extenfive territory was veiled in
them ; and, perceiving the advantages
to be derived from it, they haftened to
be powerful. The people were alarm-
ed ; they claimed the direction of this
territory ; the grants of land fubmitte^
to a progrefs ; additions flowed to the

when they were given for a term of years, and for lif£,
they had the name of lenejida : and thefeflages of feuds
occur under thefe terms in Marculpbus, who lived about
the year 660. Three centuries, and fomething more,
after this period, the perpetuity of the feud was fully
eftablifhed : and the appellation offeudum andfeuda came
to be ufed. It may be remarked, however, that this laft
exprefiion is generally employed in a more enlarged mean-
ing ; and often includes every flage of this progrefs.

G 4 power

88 Of the fiat e of Land in the Part IF.

power of the vaflals ; and laws were en-
aded to fecure their rights. Princes
forgot that they reprefented the people ;
and the people crufhed their ambition.
Liberty followed the conquerors out of
Germany ; it was in danger on their
conquefts ; and this danger, like con-
vulfions and rebellions in a ftate, ferved
to confirm and ftrengthen it.

SECT.

II.

Of the origin and decline of the feudal ce-
remonies and incidents.

IF authors have erred in affigning the
origin of the feudal polity, they have
been no lefs miftaken in accounting for
the ceremonies of fealty and homage •
and for the incidents of •ward/hip and
marriage ; of relief, aid, and efcheat.
They afcribe to the perpetuity of the

feud,

Sect. 2. German and Gothic kingdoms. 89

feud, what prevailed in the forefts of
Germany (i), and grew from the con-
ne&ion of prince and retainer.

While the barbarians were in their
own countries (2), the moft intimate
connection fubfifted between a prince,
or great warrior, and his retainers.
The military fpirit, which throws a
contempt on every thing that is joined
to labour (3), occafioning a neglect of
agriculture ; men, in fuch a period, de-
rived, in parr, their fubfiftence from
war and plunder. Without experience
of a private property in land, and un-
acquainted, of confequence, with the
ufe of money, or with commerce, there
was no other method to fupply it. At-

(1) See Spelman's treatife on Feuds and Tenures;
Montefquieu, liv. 31, ch. 33. & 34. &c,

(2) Part j. fed*, i.

(3) Tacit, de M, G. c. 14. Nee arare terram, aut ex-
peftare annum, tarn facile perfuaferis, quam vocare hoftes
et vulnera merer!, pigrum quiniminQ et iners videtur fa-
dore acquirere, qacd poflis fanguine parare.

tacking

go 6f the flatt of Land in the PartjJ.

tacking (4), therefore, their peaceful
neighbours, or leaguing with nations
already at war, they gratified their love
of arms, and of rapine ; and the great
furnifhing direction, and the vulgar
force, their mutual advantage bound
thefe ranks in the clofeft confederacy.

This connection was likewife promo-
ted by the imperfection of civil govern-
ment in thofe early ages. Before the
right of revenge is delivered up by the
individual to the magiftrate, and before
the public acquires authority to carry
its decisions into execution, men depend
on their own arms for redrefs and pro-
tection^ and fociety is often disfigured
by the violence of private refentment.
Among warriors, jealous and provoked,
the leaft neglect bore the marks of con-

(4) Si civitas, in qua orti funt, longa pace et otio
torpeat ; plerique nobilium adolefcentium petunt ultro eas
flationes, quae fum helium aliquodgerunt, quiaet ingra-
ta genti qufes, et facilius inter ancipitia clarefcunt, mag-
numque comitatum non nifl vi belloque tueare. Tacit.
A M. G, f. 14,

tempt ;

SecT:. 2. German and Gothic kingdoms, gi

tempt ; the leaft exultation, or aflumed
fuperiority, was held as a defiance ; and
the fword muft decide difputes which
no laws had been framed to determine.
The injured, if unable of himfelf to re-
taliate on his enemy, engaged his friends
to affift him; and his friends claimed
his aid in a like fituation. If a retainer
had fometimes occafion for the arm and
influence of his prince, 3. prince was
often no lefs indebted to the number
and valour of his retainers. The little
community (5) conceived itfelf injured

(5) C<?far, lib. 6. r. IT." In Gallia non folurn in omni-
bus civitatibus, atque in omnibus pagis, partibufque, fed
pene etiam in fingulis domibus, fadtiones funt : earum-
que fa&ionum principes funt, qui fummatn auftoritatem.
corum judicio habere exiflimantur : quorum ad arbitriurn
judiciumque fumma omnium rerum confiliorumque re?
deat. idque ejus rei caufa antiquitus inftitutum videtur,
ne quis ex plebe contra potentiorem auxilii egeret: fuos
cnim quifque obprimi, et crrcumveniri, non patitur ; ne-
que aliter fi faciant, ullam inter fuos habent audorita-
tem." potybiut, lib. 2. has obferved of the Senones,
4< Sodalitatibus colendis praecipue iludebant. Is namque
apud illos plurimum timetur, et potentiffimus cenfetur^
plurimi cotynu" The propinquity of blood, and

ptfier

92 Ofthejlate of Land in the Part II.

by an infult on any of its members ;
duty, as well as paffion, called it to re-
venge ; and a ftain indelible covered its
honour, if the indignity remained un^
atoned.

The fimilitude of occupation and a-
mufement ftill farther corroborated this
connection. In a rude period of, man-
ners, the tempers of men, lefs warped
and weakened by prejudice, lefs timo-
rous, diftant, and unequal, than when
the purfuits of pleafure, ambition, and
avarice, have fpread out their allure-
ments, move, without referve, to the
voice of paflion ; and friendfhips, where
there could be no intereft to deceive,
were at once lafting and ardent. While
retainers fought by each other in the
field ; while they attended the fame
train in peace ; and, equally attracted

other caufes, it may be remarked, might bind particular
individuals in the clofeft intimacy ; but fuch attachments
rather ftrengthened than derogated from the general affo-
ciations of princes and retainers.

by

Sed. 2- German and Gothic kingdoms. 93

by the fame military fports (6), were
equally adventurous to attain diftinc-
tion ; their minds, bending in a fimilar
dire&ion, difpofed them to enter into
habitudes, and linked them to each
other, by the friendly intercourfe of
office. And while the great, without
lofmg their dignity, could mingle with
the vulgar, princes were ambitious to
fhare in thefe intimacies ; and difplayed
their zeal and affection, by the enco-
miums they beftowed on their followers,
and by thofe honours (7), and prefents
(8), which are fo flattering to a warlike

people.

Thefe

(6) The amusements of a barbarous people are con-
ftantly connected with danger. Tacitus fays of the Ger-
mans, " Genus fpetfaculorum unum atque in omni
cceui idem. Nudi juvenes, quibus id ludicrum eft, in-
ter gladios fe atque infeftas frameas fahu jaciuut. Ex-
ercicatio artem paravit, ars decorem. non in quaeftum ta-
men aut mercedem. quamvis audacis lafcivije pretiurn
eft, voluptas fpedantium." de M. G. c. 24.

(7) Tacit. deM. G. c. 13.

(8) " Exigunt" (obferves the fame author concerning
the German retainers) " principis fui liberaiitate ilium

bcllatorear

94 Ofthcjlate of Land in the Part If.

Thefe caufes bound a prince and his
retainers in Gaul and Germany ; and
when the barbarians had conquered,
and the relation of fuperior and ixtffat
had fucceeded to that of prince and re-
tainer, the grants of land, which the
former beftowed on the latter, contri-
buted, with a powerful efficacy, to ad-
vance and confirm this union. Land,
at all times, fills the mind, and makes
a durable iinpreflion on the affections.
The novelty, 'how ever, of this object,
and the ardour with which the pofief-
fion of it would ftrike the barbarian,
enhanced to him its value. A prince,
or dignified warrior, viewed himfelf
with triumph, as coming in the place
of a nation ; and dealt out, as to his
fubjects, with, a fwelling heart, his land
and his greatnefs. His followers recei-
ved his prefents with an equal paffion :
and this bond of connection continued

bellatorem equum, illam cruentam vfftricemque frameam.
— Materia munificentiae per bella, et raptus," /# M. G.

€. 1.4-

US

Sed. 2. German and Gothic kingdoms. 95

its energy, when the former caufes
were no longer exerted, when the mi-
litary fpirit had decayed, when regular
governments were eftabliihed, and when
commerce and luxury had given birth
to a more varied, but lefs virtuous fcene
of manners.

The attachments, however, of prince
and retainer were ftrong and lively, be-
fore land was transferred to individuals*
and had produced their effects. The
young men directed to them their firfl
ambition ; and the ftate, conceiving a
concern in aflbciations which formed
its force, ceremonies were invented to
add to their importance. The council
of the warriors aflembled ; and if the
youthful candidates were able to endure
fatigue, and difcovered the prefages of
greatnefs (9), princes received them in-
to their retinues; they prefented to

(9) Tacit, deM. G. c. 20. Dominum ac fervum nullis
educations deliciis dignofcas. Inter eadem pecora, in ea-
dem humo degunt ; donee aetas feparet ingermos, virtus

them

g6 Of the ft ate of Land in the Part II.

them the fhield and the frame a (10) ;
and the foundations ( 1 1 ) were laid of
the firmeft commerce. The ftate confi-
dered them as citizens ; and their
minds were agitated with hope and
glory.

From this moment they accompa-
nied, on every occafion, thofe princes
to whom they had joined their affec-
tions. To guard their reputations a-
gainft the infidious attacks of a fecret
foe ; to defend their perfons againft the
more honourable aflaults of an open

(10) See part i. feft. i.

(i i) The ftrong connexion of prince and retainer is
well exemplified in the ftory cfChnodomarius : — " Com-
pulfus," fays the hiftorian, " ad ultimos metus, ultro fe
dedit, folus egreflus." And he adds, " Comitefque ejus
ducenti numero, et tres amici junftifllmi, flaguium ar-
bitrati poll regem vivere, vel pro rege non mori, ii ita
tulerit cafus, tradidere fe vinciendos.'* Am. Marcell.
lib. 14. c. 12. " Litavicus," fays Casfar, " cum fuis
clientibus, quibus, more Gallorum, nefas eft etiam in ex-
trema fortuna deferere patronos, Gergoviam profugit.'*
lib* 7: c. 40.

enemy

Sect 2. German and Gothic kingdoms. 97

nemy (12) ; to add to their luftre in
peace, and to their power in war; to
fight by their fide in battle, to equal
their courage, to increafe their renown,
and never to forfake or furvive them :
thefe were the duties to which they fub-
mitted.

By receiving from their princes the
fhield and iheframta, they had acknow-
ledged their fuperiority : and they
chearfully profefled their readinefs to
comply with injunctions and orders,
which, communicating to them the
means of action, led them to diftindion
and honours. No mean fubmiffions
were claimed, or expedted ; but the pur-
pofes of fociety and government required

(12) Tacit, de M. G. c. 14. " Cum ventura in aciem,
turpe principi viitute vinci ; turpe comitatui virtutem
principis non adrequare. Jam vero infame in omnem vi-
tam ac probrofum, fupeiflkem principi fuo ex acie recef-
fiffe. Ilium defendere, tueri, fua qnoque fortia fa£la glo-
riae ejus affignare, pr<ecipuum facramentum eft. Principes
pro victoria pugnant ; comites pro principe." See the
fame author, c, rj.

H fubor-

98 Of thejlate of Land in the Part IL

fubordination, and the offices of com-
mand and obedience.

The fame attachments prevailed, as
we obferved, when the barbarians had
conquered ; and the grants of land di-
mmifhed not their influence. The fame
ceremonies likewife continued, and
were difiinguifhed by the appellations
of fealty and homage (13). But a nicer
care attended their practice ; as retain-
ers, feparating to enjoy their lands, and
folicited by more various paffions, and
more occupied, might forget their du-
ty to their princes, might refufe the fer-
vice to which they had fubmitted, and
renounce the tenure by which they
held : and no longer at hand to approve,

(13) The oath of fi-aity, and the pr^eipuumfac r amen-
tum jull now defcribed, were exprefsly fimilar ; zn&bonage
was no more than an acknowledgement of the fuperiori-
ty of the lord. See Wright on Tenures, p. <;$. ; Coke on
Littleton, p. 64. ^ 67. ; and the GloJJaries of Spelman and
Du Cange.

and

Sect. 2. German and Gothic kingdoms. 99

and to ad in the meafures propofed (14),
a fummons from the princes called them
to arms.

In Germany, it was the great ambi-
tion of the princes to excel in the num-
ber and bravery of their retainers ; and
they naturally employed their care to
bring up to hardfhips and military dif-
cipline, thofe youths whom they defti-
ned for their train, or who, incited by
military glory (15), had already offered
themfelves to attend their fortunes,

(14) . Ligno fufpenditur alte

Ere&o clypeus, tune prsco regius omnes
Convocat a dominis feudalia jura tenentes.

Spelman, vac. Feodum*

The obligation to military fervice was known among the
Anglo-Saxons by the Profeftio militaris et expeditio ; in
the Empire by Herebannum ; and in France by Efcuagiwn ;
under which title it was known in England after the Nor-
man conqueft. See the GleJ/aries.

(15) Tacit, de M.G.c. 13. " Infignis nobilitasaut mag-
na patrum merita principis dignationem etiam adolefcen-
tulis affignant." But he adds, " Ceteris robultioribus ac
jam pridem probatis aggregantur."

H 2 Th&

100 Of the Jlate of Land in the Part II.

The fame ambition followed them in
their conquefts ; and, producing the fame
confequences, the halls of fuperiors were
filled with future vaflals (16), whofe
early merits had recommended them, or
who had found that diftinction from the
prejudice of princes, or the connection
of families.

But, unfettered by the poflefTion of
land in their own country, princes were
ever adding to their retainers. The
young men attained to the military age,
and joined in their retinues* The grants
of land fet a boundary afterwards to
their number : and while thefe were
precarious, the power of the lord raifed
up at pleafure the expectants to his fiefs.
This power was like wife exerted at the
return of the fiefs, when they had been
granted for life, or a term of years :

(16) I have {bmetimes been ready to imagine, that the
vjordjuniorcs, which occurs very often in ancient papers
and volumes, might refer, in fome inftances, to thofe
youths who were candidates to fucceed to fiefs. See Du
) voc. Juniores.

and

Seel:. 2. German and Got hie kingdoms. 101

and when they defcended with limita-
tion in a certain family, and law di-
rected the choice of the fuperior, he re-
fumed, on the death of the feudatory,
the pofleflion of the land, and took the
infant-heir under protection. It was
the court of the lord which, in thofe
ruder and more violent times, afforded
the greateft fecurity to the perfon of the
vaffal : it was there he found the fitteft
opportunities of improvement. Such
was the rife and the progrefs of ward-

jbip.

When it is. remembered, that it was
a law among the Germans, to preferve
inviolably the friendfhips of their an-
ceftors and kindred, and to inherit and
adopt their enmities (17), we may eafily
conjecture, with what ardour of mind
individuals then entered into connec-
tions of their own, and with what ftea-
dinefs of condudt they purfued and
maintained them. The ties of nature

(17) Tacit, de M. G. c. 21. Sufcipere tarn inimicitias
feu patris feu propinqui, quam amicitias, recefTe eft.

H 3 were

102 Of tie Jlate of Land in the Part II.

were not ftronger, or more facred, than
the attachments of prince and retainer.
Shall we then imagine, that followers,
renouncing all the objects of their firft
and warmer! affection, and tarnifhing
all the luftre of their former glory,
would ally themfelves with families at
variance with their princes ? or fhall we
even fancy, that fuch families would
accept of their alliances ? Retainers lif-
tened to the counfels of their princes
(18); who, uniting them to the more
honourable and powerful, employed art
to extend their greatnefs. Manners
change not of a fudden : fuperiors con-
tinued this influence, and gave their
•wards in marriage. Delinquencies, in
the one cafe, were punifhed by expuliion
from the train of the prince, and by the
infamy attending them ; in the other, by
the forfeiture of the fief.

( i 8) Ctefar fays of Dumnorix, " Hujus potentis caufd,
matrem in Biturigibus, homini illic nobiliflimo, ac poten-
tifilmo, conlocafie : ipfum ex Helvetiis uxorem habere :
fororem ex matre et propinquas fuas nuptum in alias civi-
Utes conlocafie." lib. \,c. j8.

Among

Se£t. 2. German and Gothic kingdoms. 103

Among a people who felt all their
paffions in extreme, and by whom eve-
ry mark of favour was received with
the higheil gratitude, the admiffion in-
to the train of a celebrated warrior was
neceffarily followed with fome return.
Among a people who delighted in pre-
fents (19), and performed not any aft
of civil life without exchanging them
(20), a fituation could not occur, where
their propriety was greater. Led by
pailion, and prompted by an ambition
to conciliate the affections of his prince,
every retainer, when promoted to at-
tend him, prefented fome gift to which
the opinion of rude times had annex-
ed a value. When land had become
connected with individuals, and a <u offal
was about to receive a fief, he was ex---
adly in a fimilar fituation ; and, guided

(19) " Gaudent muneribus," faid Tacitus in general
of the Germans, c. 21.

(20) See, in the fame author, the ceremonial of mar-
riage among this people, r. 1 8.

H 4 by

1 04 Of thejlate of Land in the Part II.

by the fame principles (21), he offered
a prefent to the fuperior. It is thus
(22) that the right of relief was efta-
blifhed.

The Germans, jealous of liberty,
(looped not to taxes ; but their genero-

(2«) Before this prefent came to be paid in money, it
confifted of armour ; and it might be offered in this lhape
in Germany.

(22) This right, if known by the name of relevium in
the earlier feudal times, mud have acquired it from the
confideration, that the prefent given was a kind of re-
compence to the fuperior for parting with his land : and
this notion might eafily prevail as times grew mercena-
ry. It is, however, the common notion, that this word
was not known till feuds came to be granted to a feries of
heirs : and, in this cafe, the word got a beginning, when
the fon of a feudatory offered a prefent to the fuperior to
relievf, if one may fpeak fo, the land which the death
of his anceftor had rendered caduciary.

This leads me to remark a pradtice which is common
to antiquaries. When they have found, with much in-
duftry, the age of a particular word, they invariably con-
clude, that the ceremony, or incident denoted by it, was
not known till that period. They have no conception
that the thing could prevail before the name. They aft
as phjlologers, while they mould attend to the force of
Jiiftory, and the fpirit of ages.

fity

Se£t. 2. German and Gothic kingdoms. 105

fity, and fondnefs of enterprife, fur-
nifhed to their princes a more plentiful
fource to continue their fplendour, and
to aflift their undertakings. The hearts
and the arms of their followers offered
them a fupply more effectual than that
half-granted tribute, that cold fervice,
and thofe feeble efforts, which the power,
or the wealth, of a defpotic monarch, ex-
ads, or buys from his flaves. But it
was not folely to the glory of a prince
that his retainers miniftered (23) : they
relieved alfo his wants and neceffities.
Were his fons to be initiated in the
trade of arms, were his daughters to be
married, or was his captive family to be
redeemed, their contributions furnifhed
the feaft, or made up the ranfom.
Hence the aid (24), or benevolence,

which

(23) Tacit. deM. G, r. 15. Mos elt civitatibus ultro
ac viritim conferre principibus vel armentorum vel fru-
gum, quod pro honore acceptum, etiam neceffitatibus
fubvenit.

(24) Spelman and Du Cange, voc. Auxilium. " It has
been obferved by many writer?," fays an intelligent anti-
quary,

io6 Of the Jlate of Land in the Part II.

which a vaffal rendered to his fuperior.
No people were more delicate in the
point of honour than the Germans ;
and none had ever carried the military
inftitutions to fuch a height. It is not
therefore to be fuppofed, but the fol-
lower unworthy of the train of a prince,
would immediately be expelled from it,
and incur the punifhment which was
due to his cowardice or perfidy. When
retainers got land for fervice, the fame
cafes would occur, and the fame rules
be pradtifed. The fuperior would ra-
vifh from a vaffal the fief, which his
crime or delinquence had made him
incapable to enjoy. It is thus (25)

that

quary, " that in England there were in ancient time
three forts of aid due to the king from his immediate
tenants, (and likewife to inferior lords from their imme-
diate tenants), ofcommon right, or by reafon of feigneury;
to wit, aid to make his eldeft fon a knight, to marry his
eldeft daughter, and to ranfom his perfon when taken in
war." Madox. Hift. Excheq. p. 396.

(25) See Spelman and Du Cangc, <voc, Felonia et Ef-
cbeata. I have not mentioned *he bther appearance of

tfcbeat,

Sed. 2. German and Gothic kingdoms. 107

that the incident of ef cheat was pro-
duced.

Such was the origin of thefe ceremo-
nies and incidents. They prevailed
among the Germans ; they were conti-
nued by that people when they had
conquered, and followed in every period
of the feudal progrefs. Antiquaries
have been ftruck with the grants of
land which a fuperior beftowed on his
vaflals ; but have not attended to the
hiftory of property, or to the previous
connection of thofe parties. They en-

€fcbeat> which happened on the failure ofheJrs,^ as Ihave
all along confined myfelf to times, anterior to the per-
petuity of the feud. Nor, for the fame reafon, have I
mentioned the fine of alienation. To difmember a fief,
was the invention of late times, when the advancement
of arts had made every thing to be bought and fold.
The feudal fpirit locked up land from commerce ; but
the luxury and necefiities of vaffals induced them to alie-
nate their lands. The confent of fuperiors was ne-
ceflary to fuch alienations : a bribe foftened them into
compliance ; and on this bribe the fine of alienation was
eredled. Time, no doubr, and accident, introduced in-
novations on ancient cuitom.

i tered

1 08 Ofthejlate of Land in the Part II.

tered the labyrinth without the clue to
direct their fteps (26), and were loft in
its windings.

But as thefe ceremonies and incidents
arofe, and grew with this connection
of prince and retainer, fo they attend-
ed, and were loft in its decline. When
the life of a foldier, fo expofed at dif-
ferent times to diflipation and hardihip,
had grown to be irkfome, and induftry
and labour offered a more honourable
fubfiftence than war and rapine ; when
the hand of the magiftrate was armed
with power to punifh the offender, and
government furnifhed protection and
fecurity to the perfons and pofTeffions
of men ; and when the fpirit of com-

(26) It is remarkable, that very able writers are con-
ftantly committing errors in what they write concerning
feuds. This proceeds from the little attention they pay
to the way of thinking and hiftory of the barbarians be-
fore their conquefls. The fliort, but comprehenfive and
fentjmental, work of Tacitus, on the manners of the Ger-
mans, is the key to the Initiations, the Capitularies,
and the Codes of the barbarians : yet how fddom is it
appealed to ?

merce,

Se&. 2. German and Gothic kingdoms. 1 09

merce, and the allurements of luxury,
had given birth to the arts of peace,
and the love of wealth : in fuch a
period, the ufe and neceflity of all pri-
vate aflbciations were removed ; princes
forgot their retainers, retainers their
princes ; and thofe ceremonies and inci-
dents which had attended their connec-
tion, and which were willingly perform-
ed while that connection was of advan-
tage, were confidered as grievances.
Vaflals yielded not the fubmiflion, ia
more peaceful times, which dangers and
alarms made them give with chearful-
nefs ; and the fervice injoined by tenure,
grown burdenfome and fevere, was
made elufory or civil. The heirs or ex-
pedants of feuds found it more agreea-
ble to remain at home : their relations
thought it more expedient. The voice
of war founded not fo loudly ; and the
talents for bufmefs and debate, and the
foft accomplifhments of peace, were but
ill acquired, or improved, in the hall of
the fuperior. The appetite of the fexes

had

1 1 o Of the flat e of Land in the Part II.

had refined, and was directed by more
complicated views. Retainers trufted
not to their lords the choice of the ob-
jects of their tendereft affection : nor
did they lightly enter into contracts (27),
which, unlike in their nature to all
others, the confent of the parties dif-
folves not. More guided by fentiment
than the favage and the barbarian, the
member of a polifhed age finds a thou-
fand charms, and a thoufand obftacles,
to incite and obftrucl: his paflions :
more guided alfo by intereft, he oftener
debafes his affections to a fordid and
ignoble traffick : and thefe motives join-
ed their influence againft the incident of
marriage. The feverity of the other in-
cidents was no lefs felt in a cultivated
and commercial age ; and in kingdoms

(27) In rude times, before manners have acquired a
delicacy, and before the paflions are retrained by laws,
the obligations of marriage are often temporary. The
fame confent which gave beginning to this union can dif-
folve it : and the parties, on every difguit, ieek to unite
themfelves more agreeably.

where

Sed. 3 . German and Gothic kingdoms. 1 1 1

where the feudal law has been allowed
to wear out by time, the decifions of
judges, and the force of ftatutes, have
reduced them to nothing. The enlar-
ging experience of men is ever altering
their manners : the prefent flill improves
on the paft : and thofe cuftoms and at-
tachments which one age adopts, and
purfues with pleafure, the next renoun-
ces, and avoids as oppreffive and grie-
vous. Conftant alone in the changes
they exhibit, men are ever furnifhing
the materials of thofe motley pictures
which compofe their hiflory.

SECT. III.

Of Allodial pojfcffions.

WE are not, however, to imagine,
that all the territory which the
conquering nations acquired by their
valour, was immediately converted into

fiefs.

112 Of the Jl ate of Land in the Part IL

fiefs. The German nations only occu-
pied in their own country, as much ter-
ritory as was fufficient to maintain them.
The princes who reprefented fuch na-
tions did the like ; and the lands which
remained were partly claimed by the
ancient inhabitants of the conquered
provinces, and partly poflefled by a free
title. Warriors, who fought for them-
felves, and to whom liberty and fplen-
dour had the greateft charms, were not
to be fatisfied with the precarious pof-
feffions they received from their lead-
ers. They feized alfo on eftates, which,
holding of no iuperior, were fubjeded
to no fervice : and thefe they diffipated
in expence, difpofed of by fale, prefent-
ed in donation, or tranfmitted to their
heirs ; exerting over them all the rights
of the moil abfolute property. The
codes of the barbarians perpetually al-
lude to fuch eftates, which they diftin-
guifh by the term allodial ( i) ; but they

offer

(i) Alloaium eft praedium liberum null! fervituri

obnoxium ; [deo^u? ftudo oppofitum, quod hoc Temper a-

licui

Sedt. 3. German and Gothic kingdoms. 1 13

offer not any grounds by which to ac-
count for this enlarged notion of a pri-
vate property over land. Would we find
its origin, we muft look for it in the cuf-
toms of the Germans.

The inhabitant of Germany marked
out a piece of ground around the cabin
he had built (2) ; and having inclofed

this

licui fubjacet fervituti. Dicitur etiam allodium terra

libera, quam quis a nemine tenet, nee recognoicit, licet
/it in alieno diilri&u et jurifdi&ione : ita quod folum ell
fub domino dittriftus, quoad prote&ionem et jurifdiclio-
nem. Spelman, woe. Allodium. See alfo OlcJJaire du droit
Francois, par Laitriere, Mvntcfyuieu, //<v. 30. cb. 5. and
Hume's bift. Append. 2.

(2) Tacit, de M. G. c. 16. Nullas Germanorum po-
pulis urbes habitari, fatis notam elt, ne pati quidem inter
fe juntas fedes. Colunt difcreti ac diverfi, ut fons, uc
campus, ut nemus piacuit. Vicos locant, non in noftrum
morem, connexis et cohrcreruibus a^dificiis : fuam quifque
dcmum fpatio circumdat, five adverfus cafus ignis reme-
dmni, five infcitia cedificandi. v

Montefquieu has imagined, (Vefprit des Loix, Izv. ig.
cb. 22.), that the Salick land was within the inclofure of
the German houfe ; and that the Franks, when they had
acquired new pofleflions, continued to call them Salick
lands. The authority of this author is doubilefs very
great j but let us flop a moment to inquire into his opi-'
I nior»,

114 Of thejlate of Land in the Part II.

this ground, it became an obje£fc of his
fondeft attachment ; and he poffefled it
in preference to all others. Nor did the
public, though it annually cultivated a
different territory, find it at any time
expedient to call back to its flock thofe
fpaces which individuals had occupied,
or to reftrain their extent. Within thefe
inelofures they fancied they had found

nion. If the Franks had been (ingle in furrounding their
houfes with an inclofdre, this opinion had been juft and
conclufive. The fa ft, however, applies equally to every
German nation. It muft therefore have followed, if this
opinion was well founded, that the Salick lands were
common to all the barbarous nations ; for the lands of
the koufe were common to them. But every body knows,
that the Salick lands were particular to a certain people.
The conclufion then is obvious, that the Salick lands were
not the lands of the boufe. This opinion of Montefquieu
appears likewife to be fingular : for it is generally
thought, that the Salick lands, and the Salick la<w, were fa
named from being peculiar to the Sc,lians or Franks : and
this notion is eafy and natural. Allodial lands were com-
mon to all the Gothic nations : thefe then were the lands
of the houft. With regard to the fucceflion to Salick and
Allodial land, it is probable that the fame principles di-
rected it. But in the one, the women were entirely ex-
cluded ; in the other, there was a diflant poffibility of
sfceir fucceeding.

Seel;. 3. German and Gothic kingdoms. 1 1 5

an' afylum ; and fhould the rage of their
enemies purfue and overtake them there
(3), a double penalty atoned the delin-
querice.

The continued enjoyment of lands to
which they were fo firmly united, made
men fancy them more peculiarly their
own : and while they defended them a-
gainft every invader, or fhared them
with their friends, the exertion of the
privileges of property led to the con-
ception of the right of it ; and- the ab-
ftracT: idea conveyed by that term, and fo
little known in the beginnings of fociety,
became gradually evolved. It is indeed a
fad: no lefs curious than certain (4), that
when the barbarians had conquered,
the particular fpaces furrounding the
houfes of the warriors were the firft
portions of territory which were redu-

(3) Compare the fpirit of the following laws :

lib. 8. ///. i. /. 4. Burg. add. i. tit. 5. Sal. tit. 6: §. 3.
Aim. tit. 10. n« 31. 81. 82. aj>. Lindenbr.

(4) Loccen. Antiq. Sueo-Goth. c. 19.

I 9 eed

li 6 Of the ftate of Land in the Part II.

ced to commerce. From thefe the tranfi-
tion to others was obvious : aiid their
minds growing in their powers, and
enlarging by obfervation of the cultiva-
ted manners of the conquered provinces
(5), no wonder (6) they every where took
poffeffion of lands which were free and
allodial.

It occurs, next, to inquire concerning
the principles which directed the fuccef-
fion to thefe lands : and for this end, we
muft again turn our eyes to the woods
of Germany.

(5) Some of the conquering nations entered into for-
mal agreements with the Romans, which induced them
to obferve the manners of that people: the moderation
of others pruuaced this effect without fuch agreement?.
And with regard to the Saxons, they could not but im-
bibe, during their wars with the Britains, fome part of
the civility in which the Romans had inftru&ed thoie
iflanders.

(6) Perfons who had received tfteux-Betuficw were
fometimes in ufe to difpofe of them in property, and to
purchafe them back again as allodial lands. This fraud
mows the frequency of ullodial polTeffions. See Lindenbr.
cap. £. //'/. 20.

Among

«3' German and Gothic kingdoms. 117

Among the Germans, the fons of a
warrior, fharing conftantly in his plea-
fures and fatigues, felt ftrongly his
attachments. His daughters, more
referved and diftant, wanted opportuni-
ties to improve their fympathy. His
connection with the former grew more
and more ardent; his conne&ion with
the latter 'grew colder and more indiffe-
rent. The lands he had occupied, and
the objeds he valued, were fondly re-
garded by the former ; and they con-
tinued to poffefs them. But (7) the

latter

(7) Leg. Rip. tit. 56. §.3. ap. Lindenlr. " I>um

virilis fexus extiterit, foemina in hereditatem aviaticam
non fuccedat." See alfo Leg. Angl. et Wer, tit. 6. &C.
It is worthy of remark, that if a woman who had the
good fortune to inherit land fhould have a living child
in marriage, and die in childbed, her eftate went to her
hufband. This law is curious, and points out the ori-
gin of the incident, which lawyers havediftinguifhedby the
title of the Courtejy of England, tho' it was by no means
peculiar to that kingdom. The reader will allow me to
tranfcribe it, Leg. ^lam. tit* 93, ap, Lindentr. p. 387.
*' Si qua mulier quae hereditatem paternam habet, pod
nuptum prsegnans peperit puerum, et in ipfa hora mor-
tua fuerit, et infans vivus remanferit aliquanto fpatio, vel
I 3 unius

ll8 Of the /late of Land in the Part II.

latter thought not of appropriating fub*
jecls in which their hearts found not any
claim.

It was agreeable to a warrior to tranf-
mit his liberty and greatnefs to his po~
ilerity ; but his fons alone could fup-
port thefe advantages ; and his lands
furnifhed the means to continue them.
The daughters were little interefled ;
and inherited not pofleflions which they
had not acquired, and could not de-
fend.

Farther, in thofe tinoes the hufban<3€,
by a fingular cuftom, offered portions
to the wives, not the wives to the huf*

unius horae, ut poflit aperire oculos, et vidcre culmen do-
mus, et quatuor parietes, et poftea defun<Sus fuerit. he^
reditas materna ad patrem ejus pertinent. Et tamen f^
teftes habet pater ejus, quod vidiffent ilium infantem o-
culos aperire, et potuifl'et culmen domus vjdere, et qua-
tuor pariecef, tune pater ejus habeat licentiam cum legs
ipfas res defen «ere." This law may be compared with
Coke ou Littleton, ch, 4, fed. 35. art. Curtejie

bands ;

Se£t. 3. German and Gothic kingdoms. 119

bands (8) ; and thefe correfponded to
their rank and merits. Enriched by the
prefents they received, and removed in-
to other families, the women neither
expected nor obtained poffeffions from
their own, The males fucceeded to the
lands of their anceftors ; and cuftom
growing into law, the females were al~
moil totally excluded from allodial pof-
feflions.

THESE were the different afpede which
land every where affumed on the con*
quefls of the barbarians ; and they mu-
tually communicated an influence to
each other. The more enlarged notions
of property implied in allodial pofTeA
fions haftened the perpetuity of the
feud ; and the power and affiftance
which feudal lords derived from their
vaflals, the high compofitions exacted
for the injuries they received, and the

(8) Tacit, de M. G. f, 18. " Dotem non uxor marito,
fed uxori maritus offert." The codes of the barbarians
perpetually allude to this cuftom. See Lindenlr. <VQC.
&os.

I 4 other

1 20 Of the Jl ate of Land in the Part II,

other privileges to which they were in-
titled, rendering their authority and
weight more confiderahle, and placing
them in a higher point of view than al-
lodial proprietors ; thefe, allured by fuch
advantages (9), reMgned their lands, re-
ceiving them back again in the form
of fiefs. And this practice coining to
be general, the feudal plan was fully
cftablifhed.

SECT. IV.

An application of the foregoing theory to
the hiftory of England.

IT is eafy to apply thefe reflections to
the German and Gothic kingdoms,
and to afcertain in each the changes

(9) Marculf. lib. i. form, 13. Montefq. liv. 31. ch. 8.
IJurrie, Append. 2. Hurd on the Engl. conflitution, and
the Encyclopedic mot Fief,

Sect. 4. German and Gothic kingdoms. 121

and varieties which have diftinguifhed
the ftate of land. A detail, however,
fo minute and particular, would at pre-
fent be tedious and irkfome ; and our
fubjecl: confines us to the hi (lory of Eng-
land.

The Saxons have been reprefented as
the moft warlike and uncultivated of all
the German tribes (i) ; and they re-
tained the longer! their original rude-
nefs. The phlegm of temper peculiar
to this people, their confinement to an
ifland, and that cruel policy which taught
them to exterminate the Britains, re-
tarded their refinement, but fecured
their independence. The fteps by which
they advanced were flow and cautious,
but firm and certain. The different ap-
pearances exhibited in the feudal pro-
grefs, and thofe ceremonies and incidents

(i) " Saxones omnium eas regiones incolentium barba-
rorum, et animis, et corporum viribus, etlaborum in prce-
liis tolerantia, fortiffimi habhi." Zozimus hijh lib. 3.
And Am. Marcellinus has obferved, lib. 3. " Prae ceteris
hoftibus Saxones timentur."

which

122 Of thejlate of Land In the Part II.

which conftantly attended them, were
known, and had been unfolded in the
Saxon period. The perpetuity, howe-
ver, of the feud was not frequent ;
and a great fhare of territory was pot-
fefled by a free and allodial title. The
foundations were laid, and the walls
were erected ; but the top was wanting
to the fabrick. The event was about
to eftablifh itfelf, when it was haftened
by the manners and way of thinking of
a more cultivated people.

The Normans, to whom wars and
foreign expeditions had communicated
the improvements of Europe, brought
along with them into this ifland the
perpetuity of the feud ; and to the in-
vafion of William, on which fo many
hiftorians have difplayed their preju-
dices, and fo few their candour, are we
indebted for our firft advances to art
and civility. Lands, at this period pre-
carious, and defcending in limitation,
were made hereditary and perpetual ;
ajlodial pofleffions were converted into

fiefs i

Se£t. 4» German and Gothic kingdoms. 123

fiefs ; and the feudal law (2), in its -more
enlarged condition, fpread itfelf over
England.

But

(2) A fimilar prcgrefs of the ftateof land is obfervable
in Scotland. Land in that kingdom was originally feudal
and allodial. The feudal was arbitrary, or for life, or
defcended to a feries of heirs, till the reign of Malcolm II.;
and perhaps there might be fome inftances before that
period of the perpetuity of the feud, and of the conver-
fion of allodial lands into fiefs. After this period the
feudal fyftem was made general in Scotland. A writer of
great name has reprefented it as altogether improbable,
that the bulk of a people would refign their free lands
to fubjeft them to tenure. There is not a fource of
greater miftake than the judging of the notions of one
age by thofe of another. This pra&ice took place in
every kingdom which the German and Gothic tribes ha<i
erefted : and it was a long time before the incidents at*
tending tenure were confidered as grievous. It was nc$
the views of exalting their fovereigns, which inclined in-
dividuals to refign their free pofleflions; nor was it the
power or tyranny of fovereigns which brought about fuch
refignations. It was the advantages enjoyed by the te-
nants in capitgy which induced allodial proprietors to
change their property into tenure.

I know that Spelman has conjeftured on this occafion,
that Malcolm II. has been miftaken by the Scottifti hifto-
rians for Malcolm III.; and that the laws which bear
the name of the former are to be afcribed to the latter.
But this antiquary perceived, that if the perpetuity of
fhc feud was only known in the reign of Malcolm UF.

tht

224 Of the Jlate of Land in the Part II.

But no fooner had the fyftem attained
its height, than the marks of its decline
were at hand. William and Rufus ex-

the feudal cuftoms could not have been unfolded with fo
much minutenefs, as to have been reduced to a fyftem
in the time of his fon David I. ; and yet the Regia Ma-

jeftas, the old Scottifli inftitute, which contains a very
perfed ftate of the feudal cuftoms, appears to have been
ccmpofed at the command of that monarch. This ob5
je&ion feemed to have weight ; and he removes it by an~
other conjedlure, which fuppofes, that David I. was mif-
taken for David II. In this way, the hand of an anti-
quary may mould every thing to his opinions. The mat-
ter is doubtlefs important: for. to judge by their dates,
the Regia Majeftas preceded Glanvil^ and the Engliih
muft have borrowed from the Scots the model, or the ex-
preiTion, of their laws,

I enter not, however, into this difpute. In either cafe

.the principles I proceed on appear juft; only it would
follow, if the conjectures of Spelman are allowed, that
Malcolm III. might have imitated the example of William
the Norman, in extending the perpetuity of the feud.
From thefe times the dodlrines of the feudal law became
burdenfome ; and continued to be fo till their feverities
were taken away in the reign of George II. I mail con-
clude this note with obferving, that the learned judge, to
whom I have already referred, has paid Spelman the
compliment to adopt and adorn thofe conjectures of his
juft now mentioned. The curious reader may compare
Spelman on Feuds and Tenures p. 28. and the firft in
order of the Effays on Britifh Antiquities,

aftec!

Se£t.4' German and Gothic kingdoms.

acted its duties with too full a feverity ;
and Henry I. though he granted a char-
ter to remedy thofe oppreflions, yet
carried them to greater extremity than
his predeceffors. Succeeding princes imi-
tated his example ; and the rapacity
of King John was infatiable. The ba-
rons aflerted their liberties ; the Magna
Charta was granted ; and fome mitiga-
tion was applied to their rigours. But
the feudal claims and pretenfions were
Hill confakrable and oppreflive,' and
feemed to be altogether incompatible
with the growing foftriefs and humani-
ty of manners. They continued, how-
ever, till Charles II. mounted the throne
of his anceftors ; at which time the mi-
litary tenures, with the fruits and inci-
dents attending them, were abolifhed.

•&&

HISTORIC A L Di s s E R T ATI ON

Concerning the ANTIQUITY, of the
ENGLISH CONSTITUTION.

PART III.

Of the orders of men in Germany
and England.

S E C T I O N L

Of the diftinttion of Ranks.

WHEN fociety has increafed in its
numbers, and men, drawn by
the profpe&s of advantage, have
united their forces ; when individuals have
acknowledged an intereft fuperior to their

own,

. i. Of the orders ofmen> &c. 127

own, and confider themfelves as the
members of a great body ; when com-
munities, as well as the parties injured,
conceive a- refentment againft criminals,
and a public magiftrate exads fatisfac-
tion, and moderates the rigour of re-
venge ; in a word, when the idea of a
public, or a country, is fuggefted, it is
then that the diftincTion of ranks takes
place.

This idea, the firft of any value that
is formed by men, and the moft enlar-
ged, the moft generous, and the moft
beneficial, which is at any time concei-
ved, operates, with the fulleft efficacy,
in the ruder periods of fociety. The
great paffion of the German was the
love of his country ; and unfolicited by
that variety of objects which employ
the attention in a cultivated age, and
undiftracted by thofe divifions of labour
which then prevail, he was at full lei*
fure to indulge it. The fociety to
which he belonged, was neither compli-
cated in its form, nor were its pofleflions
extenfive ; and he was able to attend,
3 without

if>8 Of the orders of men In Part III.

without embarraffinent, to its ihtereft.
He was flattered by the part he fuftain-
ed in the adminiftration of affairs ; he
was flattered by the protection which
was conftantly afforded him amidft the
violence of the times ; and, unacquaint-
ed with a private property, he was
chiefly fupported by an annual allow-
ance from his country. His tribe,
therefore, was the important object
which filled his thoughts ; and he em-
ployed all his efforts to advance its
glory. Every purfuit which contribu-
ted to this purpofe was great and glo-
rious : every purfuit which deviated
from it was mean and ignoble. This
great idea gave ftrength to his arm in
the field : it gave firmnefs to his coun-
fels in the fenate. It was his country
alone for which he lived ; and when
the vigour of his body, or the power of
his mind, was wafted or impaired by the
attacks of difeafe (i), or the decays of

age,

(i) Cativokus, one of the kings of theEburones, find-
ing himfelf infirm from age, and being deferted by his

partner

Seel. i» Germany and England. 129

age, he had recourfe to the dagger, or
to poifon, and difdained to retain a life
which was ufelefs to his nation.

In proportion as they promoted the
intereft of the tribe, the character of in-
dividuals in fuch a period was eftima-
ted. In this view, their actions were
examined, and their importance adjuft-
ed. This was the principle upon which

partner Ambiorix, difpatched himfelf by poifon. Csefar,
lib. 6. £-.31. Silius Italicus charafterifes the Spaniards
in this manner:

" Prodiga gens anima?, et properare facillima mortem,
Namque ubi tranfcendit floremes vinbus annos,
Irapatiens svi fpernit novifie feuedam,
Et Fati modus in dextra eft."

lib. i. <v. 225.

Other nations Teem alfo to have thought in the fame
manner : " Lex eft apud Ceos," (fays a judicious au-
thor), " ut ii, qui fenio plane confedli funt, tanquam ad
hofpitalem menfam Te invitantes, aut ad quoddam folennc
facrificium adfcendentes, et coronati, cicatam bibant,
quando fibi ipfis confcii funt, fe ad curanda patriae com-
moda inutiles effe, animo jam ob setatem: aliquantulum }
delirante." JElian. lib. 3. c. 37.

The fame way of thinking was in part adopted by the
Stoicks. See Cic. de Fsnibus, lib. 3.

K the

J3° Of the orders of men in Part III.

the different orders of fociety arofe ;
this was the principle from which they
derived their value. Is not the foldier
more efteemed than the flave ? is not the
noble more efteemed than the foldier ?
and the king than the noble ? As the
iphere in which he moved was more or
lefs ufeful, and as his connection with
the public was more or lefs intimate ; fo
was the rank and value poffelfed by the
citizen more or lefs honourable.

It will not be faid, that the merits
they poffefs are the fource of that refpect
which is paid to the great ; and nature,
it will not be faid, has diftinguifhed, by
certain and unerring marks, the mo-
narch from the fubjecl:, and the noble
from the flave. To their riches, how-
ever, many will be apt to afcribe their
value. But the mifer, with all his
hoarded treafure, is treated with con-
tempt. Is it then to the eafe and con-
venience, to the luxury and fplendour
they enjoy, that we give our approba-
tion ? The private man, whom fortune

has
8

Sed. i. Germany and England. 131

has favoured, frequently poffefies thefe
advantages in a higher degree ; yet was
it ever known, that he obtained that re-
gard which is beftowed on nobility ?
And what fhows the entire weaknefs of
this argument, the diftinction of ranks
is prior to the eftablifhment of pro-
perty. Kings and nobles appear in fo-
ciety before land devolves to individuals,
and before laws are framed to give fe-
curity to poffeflions. Filled and pene-
trated with the idea of a public, men
direct the diftinctions of rank by the ad-
vantages which refult to the community
from the conduct of its members ; and,
according to the connection of ranks with
the community, they determine the ho-
nour and attention conferred on them.

K $ SECT.

132 Of the orders of men in Part III.

SECT.

It.

Of the German and Saxon Kings.

WHiLE they remained in their
woods (i), the regal dignity was
very rare among the Germans. It was
not till they had fettled in their con-
quefls that it grew to be univerfal.
Their fcates, when they meant to extend

(i) The Marcomani and Qjndi had king?: " Juxta
Hermunduros," fays Tacitus, " Narifci, ac deinde Mar-
comani et Quadi agunt. — Marconi an is Quadifque ufque
ad noilram memoriam reges manferunt ex gente ip forum,
nobile Mafobodui et Tudri genus." — And heobferves, in
the fame place, '* Prsecipua Marcomanoruni gloria viref-
que, atque ipia etiam fedes pulfisolim Eoiis, virtute par-
ta. Nee Narifci Q^iadive degenerant." ds M. G. c . 42.
It likewife appears from the fame author, that the Go-
thones, the Rugii, Lemovii> and Suiones, allowed of
kings, r. 43, 44. The other Hates of Germany were in
the form of republics ; but it is difficult to fix their
number.

their

. 2. Germany and England. 133

their arms, or found it neceflary to de-
fend their territories, fubmitted, in ger-
neral, to commanders, who renounced
their power when peace was re-efta-
blifhed. Generals only for a time, they
funk into their former characters, when
the war or expedition, to the manage-
ment of which they had been eleded,
was concluded ; and every citizen was
advanced, in his turp, to command the
tribe. But having left their habitations,
the continual wars in which they were
engaged, gratitude for fervices perform-
ed, and the public intereft, which might
be hurt by the contentions of the great,
but chiefly the inverting in one perfon
the bulk of the conquered territory (2),
made them fond to continue their ge-
nerals for life ; and thus kings became
neceflary members in the governments
they eftablifhed.

In this manner Hengift came to be
king over the Saxons. At firft the lead-
er of his people, it was not till fome

(2) Part 2. fe<fr. i.

K 3 years

1 34 Of the orders of men in Part III.

years after his entry into Britain (3),
that he rofe to the royal dignity. But
neither in their own countries, nor in
the provinces in which they fettled, did
the German or Gothic nations annex a
fupreme dominion to this rank. Kings
they refpected as the firft magiftrates of
the ftate ; but the authority poflefled by
them was narrow and limited. The
public intereft was fuperior to every
other confideration, and animated the
thoughts, and directed the purfuits, of
every order of men.

When the fuffrages of a German com-
munity had advanced a more diftin-
guifhed citizen to the kingly rank, he
divefted himfelf of every attachment of
nature, and of friendfhip, and ftudied
to diftribute juflice with the utmoft im-
partiality. He was folely attentive to
the intereft of his tribe ; and the ap-

(3) Heretcgan was the Saxon term for general ; and
Hengiil, and hi brother Horfa, were refpedlively diftin-
guiihed by that appellation till the year 45 j. Saxon annals >

,.u. .

plau.

Sect. 3. Germany and England. 135

plaufe and approbation of his country-
men foftened the toils and anxieties of
his fituation. But did he, at any time,
relax his activity and martial ardour;
did he employ his abilities to the preju-
dice of his nation, or fancy he was fu-
perior to the laws ; the fame power
which raifed him to honour, humbled
and degraded him. The cufloms and
councils of his country pointed out to
him his duty ; and if he infringed on
the former, or difobeyed the latter, a
fierce people fet afide his authority.

The condition of the times neither
allowed him to affume much grandeur,
or to enjoy much eafe. His long hair
was the only ornament he affecled (4) ;
and to be foremoft to attack an enemy

was

(4) The capillorum veneratta was very great among
the German and Gothic nations, and gave birth to many
cufioms. Thus, when a peop'e would deprive their fove-
reign of his throne, they cut off his hair. The fame
thing was done, when a nobleman was to be reduced
from his rank. It alfo made a part in the puniihment of
K 4 an

1 36 Of fhe orders of men in Part III.

was his chief difti nation . Engaged in
every hazardous expedition, he was a
flranger to repofe ; and rivalled by half
the heroes of his tribe, he could obtain
little power. Anxious and watchful for
the public intereft, he felt every moment
his dependence, and gave proofs of his
fubmiffion.

He attended the general aflembly of
his nation, and was allowed the privi-
lege to harangue it firft ; but the arts of
perfuafion (5), though known and re-
fpeded by a rude people, were unequal-
ly oppofed to the prejudices and paffions
of men.

Ignorant of the ufe of money, he knew
not that fource of corruption which is
fo fatal to the virtue of polifhed ages ;

an adul'erefs. Tacit. dcM. Q. c. 19. Bottom. Fran. Gall.

c. 9. Wilkins, Leg. Angl. Sax. /. 6. •' Les Rois des

Francs," lays Montefquieu, " des Bourguignons, et des
Wjfigcths, avoient pour diademe leur longue chevelure."
liv. 18, (b. 23.

(c) — Audluntur, audoritate fuadendi magis quam ju«
bendi poteft.ite. Tacit, de M, G. c. u.

and

Seft. 2. Germany and England. 1 37

and the annual allotments of his tribe,
and the revenue arifmg to him from the
divifions of booty (6), the contributions

of

(6) The plunder they acquired was a fource of confi-
derable wealth to the Gauls and Germans, and was the
occafion of perpetual contention. " Familiaris ' (faysPo-.
lybius) " eft haac Gallis infania, quoties aliena rapue-
runt ; ubi praefertim mero ciboque fefe ingurgitarunt."
lib. 2. The king, or general, though intitled to a divi-
iion correfponding to his dignity, retained not what (hare
he pleafed of the booty. The ftory of Clovis, on this
head, is famous, and difcovers the limitation which the
liberty of the people impofed on the greateft monarchs,
A bifhop was delirous to have a certain vafe returned to
him, which had been taken by the Franks in the plunder
of his church ; and for this purpofe he applied to Clovis.
" Epifcopns autem ecclefise illius," to ufe the lan-
guage of the hillorian, 4< miflbs ad regem dirigit, pofcens,
ut fi aliud de facris vafis recipere non mereretur, ralcern
vel urceum ecclefia fua reciperet, Hxc audiens rex, ait
nuncio, Sequere nos ufque Sueifionas, quia ibi cundlaquas
acquifita funt dividenda erunt, cumque mihi vas illud
fors dederit, qujs Papa pofcit, adimpleam. Dehinc ad-
veniens Saeffionas, cunclo onere praeds in medium pofito,
ait rex, Rogo vos, 6 fortiflimi prceliatores, utfaltemmihi
vas iitud extra partem concedere non abnuatis. Hoc rege
dicente, illi quorum erat mens fanior aiunt, Omnia, glo-
riofe rex, qua; cernimus tua funt, fed et ncs tuo fumus
dominio fubjugati ; nunc quod tibi bene placitum videtur
faci:o, nuilus enim poteilati tuae refiftere valec. Cum illi

hsec

138 Of the orders of men in Part IIL

of individuals, and the fines of crimi-
nals, were fcanty and precarious. They
ferved, with difficulty, to fupport his
hofpitality and luftre : and though they
had been greater, and more certain, he
could not eafily have employed them to
extend his influence, while the metals
(7) were not marked with a fign of
value.

The authority of a Saxon monarch
was not more confiderable. The Saxons

hasc ita dixiflent, unus levis invidus ac faoilis cum voce
magna elevatam bipcnnem, urceo impulit, dicens, Nihil
hinc accipies, nife qua tibi fors <vera largitur" Gregor.
Fur one n. lib. z. c. 27.

(7) " Chez les peuples," fays an author who faw deep
into the hiilory of mankind, " qui n'or:t point de mon-
noic, chacun a peu de befoins, et les fatisfait aifement
et egalement. L'egalite eft done forces : aufli leurs chefs
ne font-ils point defpotiques.' — Les fruits de la chafTe,
de la peche, ou des troupeaux, ne peuvent s'aflembler en
afiez grande quantite, ni fe gardez afiez, pour qu'un
homme fe trouve en etat de corrompre tous les autres :
au lieu que, lorfque Ton a des fignes de richefles, on peut
faire un amas des ces fignes, et les diftribuer a qui Ton
veut." Mentefquieu, Hi'. 18. c. 17.

fubmitted

Seel. 2. Germany and England. 339

fubmitted not to the arbitrary rule of
princes. They adminiftered an oath to
their fovereigns, which bound them to
acknowledge the laws, and to defend
the rights of the church and people ;
and if they forgot this obligation (8),
they forfeited their office. In both
countries, a price was affixed on kings
(9), a fine expiated their murder, as
well as that of the meaneft citizen ; and

(8) Tyrrel, Introd. p. 58. The office of King is defcri-
bed in the following manner, in the laws of Edward the
Confeflbr : " Rex autem, quia vicarius fummi regis dt, ad
hoc eft conflitutus, u: regnum terrenum, et populum do-
mini, et fuper omnia fanftam veneretur ecclefiam ejus, et
regat, et ab injuriofis defendat, et maleficosab ea evellat,
et deftruat, et penitus difperdat. Qnod nifi fecerir, nee
nomen regis in eo conftabit, verum teftante Papa Joanne
nomen regis perdit :" — Wilkins p. 200. See alfo Lud.
Imp. Capit> add. 2. c. 22. ap. Lindenbr. I would like-
wife, on this head, refer the reader to the defer; ption
which O. Rudbeck has given of the oath taken by the
Swediih monarchs. Atlant. torn. i.p. 279. 640.

(9) Leg. ^Ethelfl. et Jud. civ. Lund. ap. Wiikins, p.
£4.71.

the

140 Of the orders of men in Par till.

the fmalleft violation of ancient ufage
(10), or the leaft ftep towards tyranny,
was always dangerous, and often fatal,
to them. But here, fome one may
urge, Did the feudal fettlement produce
then no alteration on the condition of
royalty ; and while kings were inverted
with all the territories of nations, were
they able to acquire no dominion ?

It is eafy to reply to this queftion.
We have already inquired into the ori-
gin and fpirit of this fyftem ; and have
feen how naturally a king or general
was advanced to reprefent his tribe ; and
how the bulk of the territory was veil-
ed in him for the ufe of the people.
We have feen, that his ambition was
excited by theie circumftances ; and that
he fought to employ them to his ad van-

(10) Sigebryght, King of the Weft Saxons, was fet a-
fiue for illegal and oppreffive pradices. Saxon annaht
an. 75 5. The irregular life of King Edwy produced, in
like manner, his difmiflion. Tyrrcly Introd. p. 69. Apd
Queen Sebutg-h was depofed becaufe the people yvould
not fight under a woman. Bacon's difcourfe^ p. 30.

tage.

Se<ft 2. Germany and England. 141

tage. But we have alfo obferved, that
the jealoufy of the people was thence
awakened, that they loft not a moment
to defend their rights, that they direft-
ed the progrefs of feudal poiTeffions,
and that they taught that fyftem to al-
fume thofe appearances (n) which were
moil favourable to liberty.

The head, then, of a feudal kingdom,
it is anfwered, might poflefs fome llwe
of influence, when feuds were preca-
rious or annual : but when thefe were
granted for life, or for a term of years,
this influence was diminimed ; and
when they had advanced to be heredi-
tary, it was totally deftroyed. Every ftep
in their progrefs leflened the authority
of kings (12), and the laft reduced it
to nothing.

Princes,

(11) Part 2.

(12) It is obfervable, that the advocates for tyranny
call in religion to their aid, when they find, that the tef-
timony and informations of hiftory are too ilrong for
their arts and difguifes. They trace back, with an im-
pious

142 Of the orders of men in Part lit

Princes, it is allowed, when they dif-
tributed to their fubjects the conquer-
ed territory, retained a proportion for
the expences of government, and the
fupport of the royal dignity. But wars
being as yet obnoxious to no charge
( 1 3), and the condition of royalty con-
nected with no grandeur (14), the pro-
portion

pious zeal, the rife of government to the Deity. They
proudly call a fovereign his vicegerent and delegate ; and
affirm , that he poflefles the marks of a divine commiA
fion : they dwell on his indefeafible right, which no acl:
of his, however oppreffive, can invalidate; and they
found the doftrine of paffive obedience. But in all this
they talk not the language of reafon; they difcover their
illiberal minds, and (how that they were unworthy to en-
joy the privileges of a free adminiitration. Their argu-
ments carry their refutation along with them ; and few
men can liften to them without indignation.

(13) The Saxon foldicr fupported himfelf on his own
expence. It was not till manners had been refined very
much, that troops received pay for fervice, that {landing
armies were introduced into Europe, and that many of its
Hates loft their liberty.

(14) It is told of Henry II. who was a great and
powerful monarch, that he had but three difhes at his
table. The paffage w'hich records this faft is curious,

and

Seel. 2. Germany and England. 143

portion required was inconfiderable ; and
the jealoufy of the people did not allow
them to exceed it. Nor could they fup-
ply their neceffities by the allodial pof-
feffions which they feized. This privi-
lege, which was given to the meaneft

and difcovers the genius of the age more than the paint-
ings of the molt mafterly hiltorians : " Referebat etiam
quandoque Giraldus, quod et hie apponere pr*eter reni
non putavi, qualiter Monachi S. Swinthuni Wintonias
cum Priore fuo coram Anglorum Rege Henrico II. ad
terram in luto proitrati cum lacrimis ac luftu conquefti
funt'ei, quod eorum (Epifcopus) Ricardus, quern et loco
Abbatis habebant, tria eis fercula fubtraxsrat. Et cum
rege inquirente quot eis remanferant, refponderent de-
cem, quoniam ab antique tredecim habere confueverant.
Et ego, inquit rex, in curia mea tribus ferculis contentus
fum. Pereat Epifcopus vefter, nifi ad hunc numerum
ferculorum meorum redigat fercula veftra." Girald.
Camlren. c. 5. in torn. 2. Angl.Sacr.p. 480. In the reign of
Henry VII. John Baldwyn held the manor of Oterarsfee in
Aylefbury, and other lands there, of the King (in chief)
in focage, by the fervice of finding litter for the King's
bed, to wit, in fummer grafs or herb, and two grey geefe,
and in winter ftraw, and three eels, thrice in a year, if
the King mould come thrice in a year to Aylefbury.
Madox, Bar. AngL p. 247. We may reafon backward
from theie circumftance?, and gather the condition of
the Saxon monarchs.
»

warrior,

Of the orders of men In Part III,

warrior, was refufed to monarchs. And
even the proportion of territory they re-
ceived was unalienable. The people
conceived an intereft in the royal de-
mefnes ; and thefe they could not dif-
pofe of for pious ufes (15), and far lefs

for

(15) Baldred King of Klent had given the manor of
Mailings, in Suffex, to Chrift-church in Canterbury ; but
the peopk not having confented to this gift, it was re-
voked : and King Egbert afterwards made a new grant
of the manor, with advice of the national council. Ba-
con, p. 31. Spel. Condi, torn. I. p. 340. Tyrrel, Introd.
p. 68. It was owing to this inability to alienate of them-
felves, that fo many peers of the land always fubfcribe
the charters of the ancient kings, not only as witneffes,
but as confenting to them, by the words, confenji, confir-
ma.'vi) corroborant, confolida^vi, Amen dixi, and fuch like,
each commonly ufmg a different term, and adding the
fign of the crcfs to his name. Reliq. Spel. p, 23 j.
Seld. tit. Hon. p. 503, 504. We are indeed told of a
magnificent donation given to the clergy by Ethelwul-
phus King of Weft Saxony, which feems to oppofe this
opinion. This King, fay feveral of the Monkifh writers,
granted, not only the tithe of the goods, but the tenth
part of the land through his kingdom, to God and the
church, free from all fecular fervice, taxations, and im-
pofitions whatfoever. But befides that this fad is in it-
felf improbable, it is differently told by hiflorians, and
teems to reft folely on tradition. Spelman> who is in-
clined

$e<&. £. Germany and England. 145

for any private advantage. Thus cir-
cumfcribed, could the Saxon monarchs
form or execute any proj^cl: which might
hurt the intereft of the ftate, or render
them defpotic ?

The emoluments they received from
the feudal incidents were doubtful and
unimportant (16) ; and the profits of
juflice (17) being divided between them
and the lords of the kingdom, their
fhare in thefe amounted not to any va-

elined to believe it, imagines, that the bilhops and nobi-
lity contented to the grant, de nvn temerand, ecclef. p. 6.
But whence does this appear? and how was the confu-
fion which would neceffarily refult to the pofieffions of the
people, in following out this grant, to be obviated ? If
there be any truth at all in the matter, it muft be un-
derftood^ that this monarch granted to the church, with
confent of the Hate, a tenth of his own demefnes ; or that
he granted to it, with the like confenr, a tenth of the
profits of the lands in the kingdom. Bacon, p. 20.

(16) The generality of the Englifli antiquaries have
imagined, that the feudal incidents were not known till
the Norman period : an attempt was made to refute this
opinion. See/w/. 2. fell. 2.

(17) See the following fe&ion*

L lue.

146 Of the orders of men in Part III.

lue. The advantage which, as heads of
the church, they might derive from the
vacancy of bimopricks (18), augmented
little their revenue (19). Nor was it
much increafed by the impofitions which
they levied from the towns within their
territories; and (so) they were not al-
Jowed to impofe taxes on the kingdom,

If

(18) It has, however, been doubted, if a Saxon king
could feize to his own ufe the profits of vacant bifhopricks
and monafteries. See Madox, hift. excheq. p. 207. It is
needlefs to mention, that he had a cafual revenue arifing
from treafure trove, waif, wreck, fcfr. See the fame
author, p. 234.

(19) It may be here obferved, that the king's fupre-
macy in matters ecclefiaiiical was acknowledged in the
Saxon period. No man of rank could be excommunica-
ted without his confent; and he difpofed of all offices ia
the church, with the advice of the wittenagemot. SpeL
Ccnc. torn. i. p. 386. It was not till the time of Ste-
phen that the Pope's fupremacy took place in England,
and that church-matters were entirely in the manage-
ment of his legate, and of the bifhops. Tyrrel, Introd.
/. 109,

(20) Taxes were imposed by the wittenagemot. Dane-
geld, it may be remarked, and Heregeld> have been

men-

Se£t. 2. Germany and England. 147

If their revenue was confined, their
prerogatives were not extenfive. Like
the German monarchs, they deliberated
in the general affembly of their nation ;
but their legiflative authority was not
much refpeded ; and their affent was
confidered in no better light than as a
form. This, however, was their chief
prerogative ; and they employed it to
acquire an afcendant in the ftate. To
art and infinuation they turned, as to
their only refource, and flattered a peo-

mentioned as making a part of the ufual revenue of the
Saxon kings. Howel, kiji. part 4. But danegeid was
a tribute in which the people bound themfelves to op pcfe
the Danes, and for payment of the fums exa&ed by
them. And bercgeld, if confidered as of the nature of
a relief, is comprehended among the feudal incidents. It
had, however, a variety of meanings. It fometimes fi.;-
nified the feudal obligation to attend on wars ; fometimes
the penalty incurred by negleft of that obligation ; and
fometimes, as in Scotland, it exprefTed the voluntary do-
nat on given by an inferior to a fuperior. See the Glofti~
ries. The contributons of certain towns have iikevvife
been reckoned as a part of the u'ual revenue of the crown,
Hume, Append, z. But.thefe doubt'cfs were temporary
or voluntary, and depended very much on the earL who
governed ihofe towns.

L 2 pie

148 Of the orders of men in Part III.

pie whom they could not awe ; but ad-
drefs, and the abilities to perfuade, were
a weak compenfation for the abfence of
real power.

They declared war, it is faid, and
made peace. In both cafes, however,
they acted as the inftruments of the
flate, and put into execution the refo-
lutions which its councils had decreed.
If indeed an enemy had invaded the
kingdom, and its glory and its fafety
were concerned, the great lords took
the field at the call of their fovereign.
But had a fovereign declared war a-
gainft a neighbouring ftate, without re-
quiring their advice, or if he meant to
revenge by arms an infult offered to
him by a fubjecl:, a haughty and inde-
pendent nobility refufed their amftance.
Thefe they confidered as the quarrels of
the king, not of the nation ; and in all
fuch emergencies (21), he could only
be affifted by his retainers and depend-
ents.

(21) Ufage des fiefs, parBruflel, Hv. 2. c, 6.

The

Sect. 2. Germany and England. 149

The privilege of coining (22) has like-
wife been mentioned as a prerogative of
the Saxon monarchs. But the money
which they ftruck circulated only with-
in the bounds of their demefnes (23) ;
and they were not allowed to increafe
its value, or to detract from it. They
gave pardon, it is added, to criminals.
But the crimes, it is probable, muft
have been committed within their own
lands ; and in this cafe (24), and if the
power was ftretched at any time wider,
the compofitions to the parties injured
were referved.

The prejudice of authors has taught

(22) Du Gangs has many observations on this fubjeft ;
and remarks, in particular, that the king had the exclu-
de privilege of (Iriking all the gold and filver coin.
Glojf. voc. Moneta. The reader may fee his notions exa-
mined and refuted by the author juft now cited, li<v. 2,
th. io.

(23) Tyrrel, Tntrod. p. 67. Hale, hift. placit, cor.
vol. i. p. 194.

(24) Tyrrel, Tntrod. p. 68»

L 3 them

T5° Of the orders of men in Part III.

them to afcribe to thefe monarchs (25)
prerogatives which were not known till
pofterior ages. The favour which na-
turally attends on royalty, the connec-
tion of princes with great objeds, the
luftre and appearance of power which
is given them by the execution of the
laws, the titles of honour with which,
in a cultivated age, they are loaded, and
the guards that furround their perfons ;
all thefe circumflances place them out
to the obfervation, and draw to them
the refpecl: of mankind. Their joys and
diftrefles are felt by nations ; and no
circumftance of their lives, however tri-
vial, but inferior mortals confider as
important. Struck with the glare of
their condition, the bulk of men are de-
ceived into the higher! admiration ; and,

(35) The powers acquired by kings in fubfequent times
may be feen in Hume, Append. 2. ; in Staunford's expo-
fition of the prerogative, Kale, hilt, placir. cor. Noy's
rights of the crown, Blackftone's comment. ; and in
other volumes,

forgetful

Sect. 2. Germany and England. 151

forgetful of their natural rights, and of
the privileges of citizens, they would
bind themfelves over to flavery and op-
preflion.

Nor muft we imagine that the Saxon,
any more than the German monarchs,
fucceeded each other in a lineal defcent,
or (26) that they difpofed of the crown
at their pleafure. In both countries,
the free election of the people filled the

(26) Many writers, it may be here remarked, are
fond of appealing to an original contraft between the
king and people. But hiftory has preferved no memo-
rial of this tranfa&ion ; and it is abfurd to fuppofe that
it ever happened. The people, who in every general
council or aflembly could oppofe and dethrone their fove-
reigns, were in little dread of incroachments on their
liberties : and kings, who found fufficient employment in
keeping,pofleffion of their crowns, would not likely attack
the more important privileges of their fubjecls. What was
the foundation, then, I would alk, of fuch a contract ? The
king made no attempts ; and the people had no fears.
But, reverfing the cafe, and allowing that fuch a con-
tract exifted, what fafety or advantage could refult from
it ? The more powerful would be fure to infringe it.

throne ;

Of the orders of men in Part III,

throne; and (27) their choice was the
only rule by which princes reigned.
The fuccefljon, accordingly, of their
kings, was often broken and interrupt-
ed, and (28) their depofjtions were fre-
quent and groundlefs. The will of a

(27) Boulainvilliers fays of Childeric, '* Ce prince etoit
fort jeune quand il fut eleve fur les boucliers des foldats
Fran9ois ; c'etoit chez cette nation la feule cererm nie de

Pauguration des rois: " Mem. hijlor. p. b.fol. See

alfb Les moeurs ties Francois par le Gendre, p. 13. 7<z-
citus has mentioned the fame cuftom : *' Erat in Cani-
nefatibus ftclidss audaciae Brinno, claritate natalium in-
figni. Pater ejus multa hoililia aufus, Cajanarum expe-
ditionum ludibrium irapune ipreverat. Igitur ipfo rebel-
lis familiae nomine placuir, impofuufque icuto more gen-
tis, et fuftineniium hunneris vibratus dux diligitur." kift.
lil 4. c. 15. The fame ceremony prevailed doubtlefs
among the Anglo-Saxons, and proves beyond difpute the
free ele&ion of their princes. It is probable, that this
tumultuary proceeding was confirmed or authoriftd by
the national affembly : " Legitime reges a facerdotibus
et fenioribus populi eligantur," — is a law of the great
council which met at Calcuith. SfeL Condi, torn. I.
/. 296.

(28) Tyrrel, Introd. We are told by Polylius, lil. 2.
tiu*: the Boii put to death their two kings, Ates and Ga»
Ja{u3, in a fit ofjealouf/.

prince

Sect. 2. Germany and England. 153

prince whom they had long refpected,
and the favour they naturally transfer-
red to his defcendant, made them often
advance him to the royal dignity ; but
the crown of his anceftor he confidered
as the gift of the people, and neither
expected nor claimed it as a right.

The noblenefs of their birth, joined
to the great qualities they pofTefled, di-
rected, in both countries, the election
of fovereigns ; and however much they
neglected the order of fucceflion (29),
yet on every occafion was it requifite,
that thofe who mounted the throne
fhould be of royal blood. They even
carried their refpect to all the royal
line : and the Saxons had proceeded fo
far as to diftinguifh them by parti-

(29) Tacit, de M. G. c. 7. " Reges ex nobilitate ; duces
ex vi]-tute fumunt." An old author, cited by Spelinan^
has faid the fame thing of the Longobards : " O nines
reges fuerunt adding}, id eft, de nobiliori profapia, quae
apud illos dicitur adelinga.1' Glo/l p. 10.

cular

1^4 Of the orders of men in Part III.

cular appellations (30), arid to punifh
(31), with a higher feverity, all crimes
committed in their prefence.

But it was not till after the Norman
invafion, when feuds had become here-
ditary, and the rights of primogeniture^
and reprefentation mjucccfflon^ were fully
underftood, that the people allowed the
kingly dignity to defcend in a particu-
lar family. They recurred, however,
to their free method of election when
their liberties were invaded ; arid, break-
ing the line of their monarchs, they be-
ftowed the crown where it was better
merited. They reconciled the admini-
ftration of a fmgle perfon, and the li-

(30) " In the Saxon times," fays Selden, " both the
eldelt and the reft of the king's fons were called often
^ and clitunculi ; that is, illujlrious. JEtheling,
ngy or Adding, alfo were then ufed in the fame
ienfe in Saxon ; and in the fame fenfe alfb they conti-
nued till the ti/ne of Henry I." //'/. bon. part z. ch. 5.
See like wife Dodridgis Principality af Wales, p. 143. and
^y Catalogue of Honour, p. 26.

(31) L L. In*, c, 6. L L. M\fr. c. 7. ap. Wiikins.

berty

Seel. 3. Germany and England. 155

berty of the fubjed. And to rude and
ignorant men are we indebted for that
excellent conftitution, which the ancient
world had never experienced (32), and
could not conceive.

SECT. lit

Of the German and Saxon nobility*

TH E frinces in the German
communities were the next in
rank to the king or general. They
poiTefled the greateft weight in their
nations, and were (j) adorned with

(32) " Res di/Tociabiles," fays Tacitus, " principatum
ac libertatem." — Agr. c. 3. Again, «' Haud facile li-
bertas et domini mifcentur." ////?. lib. 4. c. 64. And
Polylnus makes the fame remark, — " Regum et libera-
rum civitatum res inter fe natura fua pugnant, — " Ex-
cerp. leg. 41.

(0 Part i.feft. i.

particular

156 Of the orders of men in Part III.

particular diftin&ions. The fmgle voice
of a popular chieftain was often able to
direct the deliberations of his ftate : his
fame was frequently fufficient to put an
end to wars (2) ; and his martial prow-
efs, while it drew to him the admira-
tion of his countrymen, excited the jea-
loufy and fears of furrounding tribes.
Orgetorix had even influence to per-
fuade his nation to abandon its fettle-
inents, and attempt, in an entire body,
the conquer! of Gaul (3) ; and when
brought to his trial (4), he appeared

(2) Tacit, de M. G. c. 13. — Jpfa plerumque fa ma be! I a
profliganr.

(3) Ctpfar de B. G. lib. i. c> 2. — Orgetorix — civitati
periuaiit, uc de finibus fuis cum omnibus copiis exirent :
pei faciie eiTe, quurn virtute omnibus prsflarent, totius
Gallise imperio potiri,

(\] Id. c. 4. Orgetorix ad judicium omnem fuam

familiam, ad hominum millia decem, undique coegit ; ^t
omnes clientes obsratofque fuos, quorum magnum nu-
merum habebat, eodem conduxit : per eos, ne caufam di-
ceret, fe eripuit.

with

3. Germany and England. 157

with ten thoufand retainers. It was the
bufmefs of the great to command in
war (5), and in peace they diftributed
juftice. As yet the extended notions of
property turned not the minds of men
to the accumulation of wealth, and to
the practice of fraud ; and while an en-
larged commerce and extent of dealing
gave no intricacy to .cafes, and render-
ed not law a fcience, the authority and
abilities of the princes, or more illuftrious
warriors, were equal to the tafk of main-
taining order in fociety.

(5) C*/ar de S. G. lib. 6. c. 15. <l Hi," he had been
fpeaking of the nobility, " quum eft ufus, atque aliquod
bellum incidit, (quod ante Csefaris adventum fere quo-
tannic. accidere foJebat, uti aut ipfi injurias inferrer.t, aut
inlatas propulfarent), omnes in bello verfantur : — " " Les
xnefmes Comtes," fays Mezerctyt " et Dues, qui jugeoient
les Fran9ois, les menoient a la guerre." torn. i.p. 118.

And Muratori has obferved to the fame purpofe, .

*' Duo comitum munera fuere ; unum videlicet jufti-

t'ue populis miniilrandas, alterum militias fibi fubjeda;,
quando in bellum eundum erat, educendse atque regen-
d*." -Antif. Ital tern. l.f. 399.

The

158 Of the orders of men In Part III.

The German nobility (6) fell not in
their dignity when their nations had
conquered. They continued to enjoy
their prerogatives ; and the fafs* or al-
lotments of territory, they received,
furnimed to them a more certain and
abundant fource of wealth. The Princes
in Germany were Earls (7) in Eng-
land.

(6) Selden, and the authors who follow him, are of
opinion, that the dignity denoted by the titles of Dux
and Comes, was derived from the old Roman to the Ger-
man empire. jT/>. hon. part 2. cb. 22. Brady , kift.p* 81.
The reverfe, without doubt, is the fail. Thefe titles,
I difputa not, are found in the conftitutions of the Em-
perors before the German and Gothic nations had fettled
in their conquefts. Bur, previous to that period, the Re-
mans were acquainted with thefe nations ; and were in
the practice of imitating particular circumitances in their
manners. See part 2. y&7. i. Befides, had thefe titles
been borrowed from the Romans, they would not pro-
bably have been univerfal in the Gothic nations, but pe-»
culiar to fome of them who were more intimately con-
nected with that people.

(7) It is well known, that Princeps was the moft fre-
quent appellation for Eoldorman, or Eorle9 both in the
charters of the Saxon kings, and in the fubfcriptions lo
thofe charters, and to other .inftruments. Subregultu,
and Regulus, Patricias, Dux, Comes, and Conful, were

the

Seel. 3« Germany and England.

The great contended in both coun-
tries in the number of their retainers,
and in that fplendour and magnificence
which are fo alluring to a rude people ;
and though they joined to fet bounds
to regal power, they were often anima-
ted againft each other with the fierceft
hatred. To a proud and impatient no-
bility, It feemed little and unfuiting, to
give or to accept of compofitions for the
injuries they committed or received;
and their vaflals adopting their refent-
ment and paffions, war and bloodfhed
alone could terminate their quarrels.
What neceflarily refulted from their fi-
liation in fociety, was continued as a
frv&ihge ; and the great, in both coun-
tries, made war (8), of their private au-
thority, on their enemies. The Saxon

the other and lefs frequent names by which they were
diftinguifhed. Jt is obiervable, that Duke and Earl were
fynonymous, till the reign of Richard III. SeM. fit. bon.
p. 502. 621.

(8) Bruflel, liv. 2. ch. z.

Earls

160 Of the orders of men in Part III.

Earls even carried their arms againft
their fovereigns (9) ; and, furroundecf

(9) Meziray, Air. Cbrcnol. tout* I. p. 400. It is faid
of one Ailwin, that he was half king ; fo great was hia
authority* The fame thing is faid of Athelilane, who
was Eoldorman of the Eaft Angles,, in the reign of the
king of that name: " Tpfi regi" (to ufe the words of an
old hiftory) " adeo officiofa erat ejus fedulitas, ut ad ar-
bitrium ipfius cuncla regni negotia tra&arentur. Idcirco
ab univerfis Athelftanus Halftoning, quod eft femi-rexdi-
cebatur." tit. bon.p. 505. " The immeafurable power
of Harold," fays a great hiftorian, *' of Godwin, Leo-
fi-ic, Si ward, Morcar, Edwin, Edric, and Alfric, con-
trouled the authority of the kings, and made them nece£
(ary in the government." Hume, Append. \. " Habet
xex," fays Sraffon, tf fuperiores in regno, i. e. Comites
et Barones, — qui apponuntur regi, ut fi rex fine frceno
regeret, froenum fibi imponerent." lib. 2. c. 16. Of fb
little confideration were roonarchs, that they fometimes
held lands of a fubjeft, for which they did homage,
Bru/el, lib. 2. ch. 5. When Henry III. called Leicefter
a traitor, that nobleman gave him the lie ; and told him,
that if he were not his fove'eign, he would make Mm
repent of that infult. Hume, *uol. ^, p. 26. When Ed-
ward I. intended to fend the Karl of Hereford with an
army into Gafcony> that Earl refufed to comply with his
order ; and an altercation enfuing, the King exclaimed,
Sir Earlt by Gpd, you Jhall either go or bang. By Goett
Sir King, replied Hereford, / 'ucill neither go nor hang*
BurMi p. 101.

with

Sect. 3 . Germany and England. 1 6 r

with retainers, or fecure in fortress
and caftles, they defpifed their refent-
ment, and defied their power.

The judges of the people, they prefided
in both countries (10) in the courts of
law. The particular diftrids over which
they exerted their authority were mark-
ed out in Germany by the council of
the ftate ; and in England their jurif-
diclion extended over the fiefs and
other territories they poflefTed. All
caufes, both civil and criminal, were
tried before them; and they judged (i i),
except in cafes of the utmoft import-
ance, without appeal. They were even
allowed to grant pardon to criminals
(12), and to correct by their clemency
the rigours of juftice. Nor did the fove-

(ic) Lib. Conftitut. c. de Cormtibus, ap. Wilkin?,
p. 149.

(i t) BruiTel, liv. 2. ch. 12.
(12) Id. liv. 2. ch. 1 1.

M

reign

1 6 2 Of the orders of men in Part III.

reign (13) exercife any authority in
their lands. In thefe his officers formed
no courts (14), and his 'writ was difre-
garded.

The alteration in the ftate of proper-
ty, and the convenience of commerce,
had imprefled the metals ; and the Saxon
earls (15) ftruck all the money which
pafled in their territories. They could
refufe the King's coin (16); and it was

(13) BrufTel, liv. 2. ch. 23. L'efprit des Loix, liv. 30.
ch. 20.

(14) Dodridge, Principality of Wales, p. 38. Seld. tit.
hon. part 2. ch. 5. feel. 8. The reader may confult far-
ther the aft which abrogated the power of the Earls.
Stat. 27 Hen. VIII. c. 24. in Ruffhead, vol. 2. p. 237.
and Mad. Bar. Angl. b. 2. ch. i. tit. Comes Palatinus.

(15) Reliq. Spel. p. 249. Bird. mag. hon. p. 52.

(16) Scld. tit. hon. p. 529. Bruflel, liv. 2. ch. 10.
It is ndded by fome writers, that they gave to boroughs
a right of reprefentation in parliament, an exemption
f :\TI other courts, and power to hold plea, pardon trea-
fons, felonies, &c. See St.Amand on the legiflative power
of England, p, 133.

Z folely

Se£t 3 . Germany and England. 1 6 3

folely by their permiflion that it circu-
lated in their lands. They levied im-
pofitions (17) on their vaffals and te-
nants : they directed the cuftoms and
ufages which prevailed within their ju-
rifdiclions (18); and they were enriched
by the feudal incidents (19) of their re-
tainers. They had officers, as well as the
King, who collected their revenues (20),

and

(17) Dodridge, pr. of Wales, p. 91. Madox, hift. cx-
cheq. p. 498.

(18) BrulTel, liv. 2. ch. 31.

(19) Dodridge, pr. of Wales, p. 90.

(20) They had their Dapifers, cr Scnefcballs, Cham-
berlains, and other officers. A writ by Earl Ranulf to
his people has this preamble : " Ran^lfus, Comes Ceir.ri«e,
Epifcopo Ceftria;, Dapifero, Baronibus, Jufticiariis, Ca-
ftellanis, Vicecomitibus, Miniflris, et Balivis, ec omnibus
hominibus fuis, Francis et Anglis, C'ericis et Laicis, fa-
lutem." Madox, Bar.Angl.p. 133. The fame thing is
partly to be gathered from the following law of Edward

. the Confeilbr : " Archiepifcopi, Epifcopi, Comites, Ba-

rones, et omnes qui habuerint facham et fccam, thol,

theam, et infangthcfe, etiam milites fjos, proprios fer-

vientes, fcilicet Dapiferos, Pincernas, Cameiarios, Pifto-

M 2 res,

1 64 Of the orders of men in Part III.

and added to their greatnefs : and the
inhabitants of their lands (21} they
diftinguifhed by the name offubjects.

res, et Cocos, fub fuo friborgo habeant. Et item iili fuos
armigeros, vel alios fibi fcrvientes fuo friborgo. Quod
(i cui forisfacerent, et clamor vicinorum de eis afTurgeret,
ipfi tenerent eos re&itudini in curia fua : illi dico qui ha-
berent ficham et fccam, tho!, et theam, et infangthefe/'
Wilkins, p. 202.

(21.) BruflH, liv. 2. en. /}. it may be judged from tlie
great power of the princes or earls, that the Saxon earl-
doms were very early and very generally given for life.
Thete occur alfo inftances of fome given in perpetuity in
the Saxon period. Two cf this kind are mentioned in
the Titles of PIcnour : tlie one extended from the Humber
to the Tyne, and was known by the name of Deirelandt
or Deira ; the other extended from thence northward,
and was named Bernicia " Thefeeoldordoms,"' faysSet-
den. " began in Othot brother to Hengift King of Kent,
and Ebufa his fon ; who, having conquered, by Hengift's
commiffion, thofe northern parts, held them as eoldor-
doms, or earldoms, of the Kings of Kent ; and by that
name tranfmitted them to their heirs, who ufed no other
title than Eolderman* or Dux, or Comes, until Ida, in
567, took on him the name of King of all Northumber-
land.'* tit. hen. p 511. J know that Spelman, in his
treatife of ftuus and tenures, oppufes this opinion of Scl-
den, and objecls againft thefe examples which fupport it :
but his reafons arc of little weight.

Et

Sect. 3- Germany and England. j g -

But to attend the general affembly of
their nation, was the chief prerogative
of the German and Saxon princes : and
as they confulted there the intereft of
their country, and deliberated concern-
ing laws and matters of ftate (22) ; fo,
in the king's courty of which alfo they
were members, they aflifted to pro-
nounce judgment in the complaints and
appeals which were lodged in it.

It muft not, however, be imagined,
that every one in this order (23) of
greatnefs pofleiTed equally the lame ad-
vantages. In both countries, the tur-

(22) " Eoolna Dei gratia Occiduorum Sax num Rex,"
fays the preamble to his law?, — " cum omnibus meis fe-
natoribus — confultabam — de fundamento regni noftri, ut
juflsD leges, et jufta ftatuta per ditionem noltram ftabilita
et coniiituca efient, — " Wilkins, f. 14.

(23) The Earls of greateft authority were Earls Pa-
latine. The wcrds, indeed, Palatine and Palatinate,
were not known till the Norman times. But this need
not occafion the fmalleft difficulty. In the coarfe of hu-
man affairs, tlu1 thing or cujlom muft invariably be known,
or prevail, before the name be invented to diflinguiflj it.

M 3 bulence

1 66 Of the orders of men in Part 111.

bulence of the times had furnifhed the
more able and ambitious with oppor-
tunities to excel (24) ; and they arroga-
ted fuperior powers as the reward of
their merits and fervices. The mofl: ex-
tenfive privileges, and a jurifdiction full
and unbounded, were porTerTed and ex-
ercifed by fome ; while the dignity of
others attracted lefs, and their authority
was more fubje£t to controul, more pre-
carious and limited.

A fmaller allotment in the annual dif-
tribution of the land was given by a
German community to the inferior
princes or earls ; and they were lefs con-
fidered in the divifions of booty. In
England they enjoyed only a portion of
the territories they governed, while the
fuperior and more noble earls retained
all the land within their jurifdi&ion.

(2.< ) Dumnorix. for example, Orgetorix, and Indutio-
mams, were fupenor Princes or Earls in Gaul ; Armi-
nius and Civilis in Germany j and Harold, Godwin, Leo-
fric, &c. in England.

And

Seel:. 3. Germany and England. 167

And fometimes they received but a third
or other cuftomary part of the profits
of juftice (25), while the more dignified

princes

(25) Godwin, it is faid, was Earl of all Weftfex. But
if he had poffefled all the lands in Weftfex, Hardiknute
could not hate been king of any thing there. This Earl
then had only fome particular pofTeifion in Weiifex, tho*
he prefided as judge over the whole earldom. The like,
fays Selden, may be obferved of others tha^ occur in the
ftories of the Saxon times. This author give, alfo exam-
ples of earls who had only a particular revenue from the
profits of juHice in their territories. And he iemarks,
that it is to all fuch inferior eoldormen that Ingulphus al-
ludes, when he obferves, that Alfred appointed his _/«/?«-
ciarii and *vicecomites through his counties. For the go-
vernment of other counties was fufficiendy eltablimed by
their being given to the fuperior princes or ecldormen.
This antiquary fpeaks alfo of eoldormen who had their
whole earldoms to their own ufe, ///. ben. part 2. cb 5.
Jeft.^. & y See alfo Leg. Longobard, lib. I. tit. 2. c. 10.
ap. Lindenlr. p. 517. A curious queftion refults from the
confideration of thefe inferior Earls : In whom (hall we
fuppofe were the bodies of thofe (hires and territories
lodged which they governed ? Selden, and his follow-
ers, affirm, that they were lodged in the crown. In
lands which formed a part of the royal cemefne, the
king might doubtlefs conftitute an inferior earl, and the
body of the territory remain in the crown. But in whom
were the bodies of thofe (hires veiled, over which inferior
earls prefided, and which conftituted no part of the royal
M 4 territory ?

i68 Of the orders of men in Part III.

princes employed all fuch profits to their
own advantage. They could not, like
thefe, give pardon to criminals ; nor was
their civil authority fo extenfive.

But the king or general in Germany,
and the chieftains or princes, had re-
tainers who attended their perfons, and
conftituted their courts. To thefe, when
they had conquered, they dealt out
many fair porleffions, which, while they
ierved to rewrard their valour (26), con-
tinued their attachment and fervices.
A different rank of nobility thus arofe
among the Saxons ; and thofe who were
Companions in Germany wereTbanes (27)
in England,

It

teiritory ? Our antiquaries, fo far as I remember, have
not anfwered this quellion. The land of the kingdom,
jt was obferved, w s partly feudal, and partly allodial.
A great fhare of territory had b'.en feized by free adven-
turers, who exerted a full right over their acquifitions.
In thefe, then, the bodies of thofe fhires were veiled.

(zQ Part 2. fed. i.

(27) The word <Thegne, or Thane, fignifies Minifttr^ or
" And k>," fays Selden, " are the tranflations

moil

Se£t. 3. Germany and England. 169

It is not, however, to be fuppofed,
that the companions of princes or earls
were of equal dignity with thofe of the
king. Hence then the diftindion (28)

of

rnoft frequent, both out of the Saxon laws 2nd annals,
into the Latin of elder times, and out of Latin into
Saxon." ///. hon. p. 507. Anibacht was the old German
appellation for thane or companion. It occurs in C<zfart
lib. 6. c. 15. ; and Lindenbrogius, and the other writers
of glofTaries, exprefs it indifferently, by client, or minifter.
The fervice which thanes rendered to the king and
princes was the reafon of their name, but was by no
means difhonourable. " Nee rubor," fays Tacitus, «' in-
ter comites afpici." The Prince of Wales even ufed Jc
dien, or thein, " / ferve," for his motto. See Forte/cue's
notes on Forte/cue on monarchy, p. 41. or Bird, mag. hon.
p. 19.

(28) The thani majores were the King's thanes. The
thani minores were the thanes of princes or earls. The
higher prelates of the church had likewife their thanes,
" Non feulement nos Rois," fays Lauriere^ et les Dues,
et les Comtes, qui relevoient d'eux, avoient lears Barons,
m:is encore les Eveques : — " Gloffaire du droit Francois,
mot Baron. See allo Spelman on Feuds and Tenures,
p. 16 ad Bird, mag. hon. p. 5 % The Earl of Chefter, for
example had eight thanes, or barons, who acknowledged
him to be their fuoenor lord. Dodridge, pr. of Wales,
p. i 24. Mr. Hume, when talking in general of the no-
fctjlity among the Anglo-Saxons, has the following remark-
able

l Jo Of the orders of men in Part III.

of greater and leffer thanes. Nor muft it
be imagined, that the king and earls
were equally attached to every indivi-
dual in their trains, and beftowed on
each the fame quantity of territory.
We know that the princes in Germany
diftinguifhed their companions accord-
ing to their valour and military qua-
lities (29) ; and a like diflindtion pre-
vailing

able pafTage. <: The nobles were called thanes', and
were of two kinds, the King's thdnes and lefTer thanes.
The latter feem to have been dependent on the former."
Append, i. The thanes I ihould imagine, were by no
means the chief nobility of the Saxons ; nor were the
leffer thanes in the fmalleft degree dependent on or con-
nected with the greater one.-. In fome cafes, indeed, a
thane might have a thane under him ; buc the thanes in
this loweft clafs could not be of the order of nobility ;
and befides, they were not fo numerous as to conftitute
a particular rank. Perhaps, too, the authority which
JMr. Hume has cited to confirm his opinion, overthrows
it ; and, at any rate, I fhould think it impoflible to re-
concile it to hiftory. Hence the difficulty of tbefe fub-
jecls may appear ; and if fo great a man has been miita-
ken, into how many errors muil I have fallen ?

(29) Tacit, de M. G. c. 13. " Gradus quinetiam et
ipfe cornitatus h'abet, judicio ejus quern feftantur." It
appears, as was juft now hinted, that even a thane could,

in

Se£t. 3. Germany and England.

vailing in England, very unequal pof-
feffions (30) were given to retainers.
The powers, therefore, and jurifdi£tion
of thanes (31) were more or lefs exten-
five, in proportion to their territories.

Like

in certain circuro fiances, have a thane of his own under
him : and this loweft thane might take an oath inftead of
his lord, and fupply his place in cafes of neceffity and e-
mergence. Jud. Civ. Lund. ap. Wilkins, p. 71. *' At-
tamen, fi thanus fit, qui ferviat regi et iter equeftre
ipiius faciat in provincia illius, f\ tune thanum habeat,
qui eum fequitur, qui ad regis egreflum quinque hydas
habeat, et in regis aula domino fuo ferviat, et ter cum
epiftola ejus proficifcatur ad regem, ille in pofterum cum
prsejuramento fuo domini vicario munere fungi debet
circa varias neceffitates, et caufam ejus juite vindicare ubi-
cunque debebat."

(30) Madox, Bar. Angl. p. 134.

,(31) It is remarked by antiquaries, that five hides of
land were the fmalleil portion of territory which could
be pofleffed by a thane. " A hide of land," fays Sel-
den, ** regularly is and was (as I think) as much land aS
might be well manured with one plough, together with
pafture, meadow, and wood, competent for the main-
tenance of that plough, and the fervants of the family.
I know divers of the ancients make it an hundred acres.
Others give otherwife a certainty to it. But doubtlefs it

was

1 72 Of the orders of men in Part III.

Like the barons (32), who fucceeded
them, they diftributed juftice, each in
his particular manor.

The companion in Germany could rife
to the dignity of a prince ; and the thane
in England (33) could attain the rank
of an earl. But the attendance of the
former was neceflary and perpetual ; that
of the latter was lefs ufeful, and only

was uncertain ; and juftly is by others called only a
plojgh-land, or fo much as belongs to the tillage : whence
it moil of neceflity be various, according to the nature of
the foil and cuftom of hufbandry in every country. Thence
is it that in Doomefday, fuch a place geldabat pro 10, 12.
20. &V. bidis ; that is, it paid after the rate of fo many
hides ; for by hides the ufual payments of fubfidies and
aids were in the elder times ; and that which was always
difcharged was often called terra non bidata, as the o-
ther bidata. But the juft value of a hide that might
fit the whole kingdom never appears there." ///. ban*
p. 5»6»

(32) After the time of William I. baron and barony
were ufed for thane and tbaneland. Selden, p. 569.

(33) Jud, Civ. Lund. ap. Wilkins, p.ji. Attamen fi
thanus comes fiat, tune jure comitis in poflerum fit
dignus.

given

Seel 3. Germany and England.

given on particular occafions. To be
at all times ready with his aid and fer-
vice, was the chief ambition of the Ger-
man retainer : but the lands which had
been granted to the thane required his
attention ; and lefs neceffitous, and more
independent, by the property his virtues
had purchafed, he found every fervice
difagreeable.

The varying fituation of land, which
produces fo many changes in the fen-
timents and inclinations of men, had
altered the condition of ranks. When
the tribe alone was capable of property,
and yearly dividing its members, alter-
nately affigned to the one half of them
the office of cultivating the ground, and
to the other that of fighting its battles ;
ail employments (34), both civil and mi-
litary, were annual. Men rofe and fell
in their ranks ; and the individuals who

(34) Part \. feft. 3. Tt is cbferved of the Belgs, by
Strabo, lib, 4. •* Annqunus unum quotar.nis princi^e.n,
itemque belli dutem muUicudo deligebat ; ''

compofed

1 74 Of the orders of men in Part III.

compofed the community were advan-
ced in their turn to its honours. But
land, having loft all connection with the
tribe, and individuals beginning to haye
property, employments and ranks were
continued beyond the year. Riches and
power had too many charms to be re-
linquifhed ; and the altered condition
of fociety allowed not the former
changes to take place. Men wifhed to
enjoy during life, or to a diftant period,
the lands and the offices which their
merits had procured : and no fooner
were their wifhes indulged, but the fons
intruded into the employments, and u-
furped the rank of their anceftors. Al-
ready in the Saxon period were land, of-
fices, and honours, haftening to be he-
reditary ; and, what may feem very fin-
gular (35), already were there fome ex-
amples of entails.

SECT.

(35) " Si quis terram hsereditariam habeat, quam pa-
rentes ejus ipfi reliquerunt, tune ftatuimus, ut earn non
vendat a cognatis haeredibus fuis, fi adfit fcriptura vel
teftis, quod illi viro prohibitum fit, qui cam ab initio ac-
quifivit, et illi qui earn vendidit, ut ita facere nequeat,

el

4. Germany and England. J 75

SECT. IV.

Of Allodial Proprietor S) Ceorks, and Vil-
leins.

!.]%/? ANY German warriors, uncon-

M

neded with the king or princes,
and led by their native valour, and the
hope of plunder and acquifition, had
engaged in the expeditions of their
ftates ; and many others, difgufted per-
haps with the too lordly authority of
their chiefs, had divefted themfelves of
every attachment to them, and renoun-
ced their trains. Thefe, fighting more
immediately for themfelves under a
leader whom accident, or their choice,

et hoc tune in Regis ve! Epifcopi teftiwnio recitetur co-
ram cognatis fuif." LL, JElfr. c. 37. ap. Wilkim ^.4.3.
The reader may coniult farther the note or Wiikins on
this law ; and Spel. Cone. torn. i. p. 370.

had

176 Of the orders of men in Part IIL

had raifed to that honour, were difu-
nited from the tribe, and could not be
confidered in the diftributions of terri-
tory which followed on a conqueft.
They conftituted, therefore, a particu-
lar rank (i) ; and, receiving no gift or
feudal pofTeffion, they feized on lands
which were free and allodial.

This order of men was more nume-
rous in England (2) than in any other
kingdom. The invitation to the Saxons
was unexpected j their compliance, of
confequence, was not the refult of much
deliberation or concert ; and every war-
rior, fond of novelty, or tired of peace,
ranged himfelf indifferently under the
Britifh banner. To affift a defpairing
and degenerate people, was too mean an

(1) Ft was formerly obferved, that many warriors who
had received fefs, with which however they were unfa-
tisfied, feized alfo on allodial pofTeflions. But thefe, I
fhould imagine, were always confidered in their feudal
capacity. See part 2. feft. 3.

(2) This facl, it 1*3 faid, appears in a particular manner
from the furveys of Doomefday.

objed

Sed. 4. Germany and England. 177

objed to attrad the attention of tribes;
and the fupplies which were given, con-
fitting of the more tumultuous and dif-
orderly, were little under the direction
of authority, and little bound or guided
by the ties of prince and retainer. They
therefore conquered as individuals, ra-
ther than in a body ; and though the ge-
neral dealt out many feudal grants, yet
was a confiderable territory converted
into property.

The pofleiTors of allodial lands, break-
ing the natural fubordination of the
feudal arrangements, and being regard-
ed with envy, or ccniidered as the in-
ftruments of rebellion, were neither en-
couraged by the king, nor refpeded by
the nobles. Mean and unequal compo-
fitions were affixed to the injuries they
received ; a fmall price or value was
put upon their heads ; and though their
property procured to them fome confi-
deration with the vulgar, and repaid in
part the infolence of the great ; yet, ex-
cicifmg a very limited jurifdidion, and
N unfa-

178 Of the orders of men in Part III.

unfatisfied with their condition, they
afpired to be equal in power and privi-
leges to the nobility. Kings were fond
to unite them to the Hate ; and feuds
growing to be perpetual, they refigned
their free porTeflions, and received them
back again in tenure. The feudal ad*-
vantages were thus communicated to
allodial proprietors ; and their lands
were fecured by charters. This exten-
fion of the feudal polity (3) took place
on the Norman invafion.

II. THE next in the range of fubor-
dination in Germany and England were
the Ceorles. In the one country, they
poflefled thofe lands which individuals
had abftraded from the tribe (4) ; in

(3) It is mentioned by Madox, that by or before the
end of the reign of King Henry IF. the feudal law was
fo fully fettled, that all the lands in England were char-
ged with fome fervice or other ; and there was no allo-
dium left. This, he add?, is admitted by the Lord Chief
Juflice Coke. Bar. AngL p. 30.

(4) Part 2. fed. 3.

the

Seel:; 4. Germany and England. 1 79

the other, they cultivated the property
of the great ; and in both, they render-
ed a proportion of corn 15), cattle, or
cloth. The ignorance of leafes fub-
jedled them, in fome degree, to an ar-
bitrary removal ; but the rich exerted
not this privilege, while they paid their

(15) Tacit, -de M. G. c. 25. " Ceteris fervis non in
noftrum morem, defcriptis per familiam minifteriis, utun-
tur. Suam quifque fedem, fuos penates regie. Fru-
menti modum dominus, aut pecoris, aut veftis, ut colono
injungit : ec fcrvus haclenus paretj." The rents of land
were likewife paid in kind during the Saxon period. It
was not till the time of Henry L. that they were convert-
ed into money. The furniture for foreign wars render-
ed money at that time neceflary ; and the farmers com-
plaining of the great trouble of carrying victuals to a
diftance from their houfes, " the King directed commif.
fion to certain difcreet perfons, wfyich (having regard of
the value of thofe victuals) fhould reduce them into rea-
fonable fums of money ; the levying of which fums they
appointed to the (herifF, taking order withal, that he
Ihould pay them at they?^/^ or beam \ that is to fay, that
he Ihould pay fixpenceover and above every pound weight
of money ; becaufethey thought, that in time the money
would lofe that much in the wearing." See Ger<vafe of
Tilbury on the Excbeq. EirJy Mag. bon. p. 119. or Lam-
bard, Peramb. of Kent, p. 228. 'I he example of the king
>vajs followed by the nouility..

N*2 retributions,

1 80 Of the orders of mtn in Part III,

retributions, and fulfilled their engage-
ments. And the laws guarded them
from oppreffion (6), as they fixed the re-
turns for every poiTeffion. Among the
Saxons they were confidered as members
of the community (7), and could claim
its protection. Free in their condition,
they renounced at pleafure their poflef-
fions (8) ; a valuation was put upon their
heads (9) ; they were capable of proper-
ty ; they could rife to command and

(6) LL. In#, c. 70. The reader may fee on this head
feveral carious particulars in Spelman, <voc. Firma,

(7)LL. J£\h. c. ii. 31. 35. ap. Wilkins.

(8) It is accordingly provided by the laws of King Tna,
in what manner a Ceorle fhould leave his land on his de-
parture. Thus it is faid, " Qni viginti hydas terras pof-
Cdef, relinquere debet duodecim hydas terras fats, cum
abire velit/' And, '* Qui habuerit decem hydas, re'in-
quere debet fex hydas terras fatse." And fo in proportion
of the reft. Wilkins , p. 25.

(9) " Coloni sftimatio capitis eft CCLXVI thrymfarum,
quse faciunt cc folidos juxta legem Merciorum." Jud*
Civ. Lund. ap. Wilkins, p.Jl. and LL, JEtbeLp. 64.

offices ^

Sect. 4. Germany and England. 181

offices ; and did their wealth fufficient-
ly increafe, they were inverted with the
honours (10) and the dignity of a
thcine.

III. BUT in every rifing community
there are ever found fome individuals
who conceive not the duties of citizens,
and compofe an inferior order. The
hewers of wood, and the drawers of
water, they exercife the meaner! occu-

(10) " Et fi colonus tamen fit, qui habeat integras
quinque hydas terra;, ecclefiam et culinam, turrim fa-
cram, et atrii fedem ac officium diflinftum in aula regis,
ille tune in pofterum fit jure thani dignus." Jud. Civ.
f,und. ap< Wilkin:^ p. 70. This law? it is obfervable, is
alfo fo far curious, as it mows the ftate and fafhipnof a
Saxon thane. He had a church for his family and te-
nants ; he had a court for them ; and entertained them
in his houfe. See farther, Milks y Cat. ban. p. 72. and
Stld. tit. hon. p. 516. It comes likewife to be remarked
in this place, that if a merchant had made three voyage?,
he was intitled to be a thane ; " Et fi mercator tamen
fit, qui ter trans altum mare per facultates proprias ab-
eat, ille portea jure thani fit dignus." Wilkins^ p. 71.
This law required confiderabJe cultivation in the legifla-
ture, and {hows that the Anglo-Saxons were refining in
their manners,

N 3 pationst

1.8 2 Of the orders of wen in Part III.

pations, and fuftain not the public in-
tereft or glory, by their voice in the fe^
nate, or their arm in the field. The
property of mailers, they acquire not
by their labour, and are fold, and put
to death with impunity. Such, in Ger-
many and England, were the flaves, or
Villeins.

To this wretched condition the chance
of war and of gaming (n) reduced
men in Germany : and thefe caufes fail-
ed not to operate this effect among the
Anglo-Saxons. Many alfo of the an-
cient Britains had become the flaves of
their conquerors : and the wars in the
heptarchy, and the incurfions (12) of

( 1 1) Tacit, de M. G. <-. 24. Aleam (quod mirere) fo-
brii inter feria exercent, tanta lucrandi perdendive teme-
ritate, ut cum omnia defecerunt, extreme ac noviflimo
jadlu de libertate et de corpore contendant. Vi&us vo-
luntariam fervitutem adit, quamvis junior, quamvis ro-
buftior, alligari fe ac venire patitur. ea eft in re prava
pervicacia : ipfi fidem vocant.

(12) Hume, App. i.

the

Sect. 4. Germany and England., 183

the Danes, had added to their number.
Their crimes fubje&ed fome to flavery
(13) ; misfortune and calamity induced
others to traffic their liberty (14) ; and
this ftate (15) received a conftant in-
creafe from thofe who were born to it.

The magnanimity of the Germans
did not allow them to treat their flaves

(13) LL. Inae, c. 7. ap. Wilkins, p. 16. LL. Bad-
ward, c. 9. p. 50. Capit. Kar. et Lud. lib. 4. tit. 14. ap.
Lindenbr. p. 893.

(14) LL. /»<*•, f. II. 31. ap. Wilkins, p. 17. 19. An
infolvent free man fubmitted to fervitude till he had
given fatisfa&ion. Longob. leg. lib. i. ///. 14. c. 10. 13.
ap. Lindenbr. p. 539. *' Plerique," fays Ctefar of the
Gaulic commonality, " quum aut aere alieno, aut magni-
tudine tributorum, aut injuria potentiorum premuntur,
fefein fervitutem dicant nobilibus." lib. 6. c. 13,

(15) Slaves were either wHani, bondi, or aati'vi.
The vtllani (to ufe the words of Spelman) were fo call-
ed, becaufe they belonged ad villam domini; that is, to
the manor or town of their lord. The bondi> or bond-
men, had fold themfelves into bondage, or had been con-
demned to it by courfe of law. The nativi were the ofF-
fpring of both thefe ; and fo called becaufe they were
nati ad fervitutem, Reliq. Spel. p. 250, 251.

N 4 with

184 Of the orders of men in Part IIL

with inhumanity. They feldom pu-<
nifhed their tranfgreffions with torture
or imprifonment ; and if at any time
they put them to death (16), it was not
with difcipline and feverity, but in the
rage of paflion. Among the Saxons,
however, to whom the connection with
land, and the notions of private proper-
ty had taught the more felfifh and lefs
noble paffions, it was neceflary that the
community fhould furnifh them protec-
tion. Laws accordingly were enacted
(17), which puniihed the feverity of
m afters, and on proofs of hard ufage,
allowed villeins their liberty. But they
were never confidered as members-of the

(16) T'afit. deM. G. c. 25. Verberare fervum, acvfn-
f culls et opere coercer.e, rarum j occidere folent, non dif-

ciplina et feveritate, fed impetu et ira, ut inimicum, nift
quod impune.

(17) LL. JTlfr. c. 20. Si quis fervi fui vel ancillae fuas
[ oculum exculTerit, et ille port fa^um hoc lufcus fit, ma.

numittat ipfum ftatim. Si dentem ei excuflerit, faciat
idem. Seealfo/,/:. JBlfr. c. 17,

ftate,

Se£L4*" Germany and England. 185

ftate, and no price or value was put up-*
on their heads.

The pride and ambition of patrons,
which made them fond to add to their
jetinue and force, in times of foreign
and domeftic wars, induced them fre-
quently to give liberty to their villeins
(18) ; and their humanity made them
fometimes prefent to them the arms of
freedom, " the fpear and the fword."
Their intereft or avarice made them
often grant land to villeins under rent
and fervices ; which lifted them to the

(18) " — Si qui vero velit fervum fuum liberum facere,
tradat eum vicecomiti per manum dextram :n pleno co-
iqitatu, qoietum ilium, clamare debet a jugo fervitutis
fax per manumiffionem, et oilendat ei liberas vias, et
portas, et tradat iili iibera arma, fcilicet, lanceam at gla-
dium ; deinde liber homo efficuur." Wilkins, />. 229.
" Si quis fervum fuum ad alrare manumiferit, liber efto,
et habilis fit ad gaudendum haereditate et vvirgildo, et
fas fit ei ubi volet fine limite verfari." Jud. Withr. c. o.
ap. SpeJ. Cone. torn. i.p. 195. Slax'es could alfo be made
free by will, by charter or deed, and in a great many o-
ther ways. See Brady, kijl. p. 82. Hickef. Di//ert. Epijt.
f. 13. 14. 15.

condition

1 86 Of the orders of men in Part III.

condition of hufbandmen (19): and if
'villeins had remained in a privileged
town during a year and day (20), the
laws gave them liberty.

A road was thus opened for the mean-
er! in the community to attain to its ho-
nours ; and while inferior orders were
animated with the profpeft of better-
ing their condition, the offices and pur-
pofes of fociety were performed with
vigour. The activity and ardour with
which different ranks profecuted their
different employments, communicated
improvement to the community ; and
men advanced in civility, and the arts of
life.

(19) In this way they rofe to be Copyholders. Brady,
p. 206,

(20) Si fervi permanferint fine calumnia per annum et
diem in civitatibus noftris, vel in burgis in muro vallatis,
vel in caftris noftris, a die ilia liberi efficiuntur, et liberi a
jugo fervitutis fuse (int in perpetuum. Wilkinst p. 229.
Ang. Sac. torn, i. p. 261.

SECT.

Sect, 5. Germany and England. 1 8 j

SECT. V.

Of the German Priejls or Druids (j).

IN the firft periods of fociety, the con-
duel: of men is more governed by
accident than defign ; and many ages
pafs away before certain and determi-
ned habits of life point out a dire^ion
to their thoughts and purfuits. Events

corne

(i) Several men of letters, mifled by a paflage in Cse-
far, have concluded that the Germans had no druids.
But the reafons they urge in fupport of their opinion are
\veak, and of little weight. If the Germans were of Cel-
tic orgin ; and that they were, we have the teftimony of
Arian, of Strabo, and of other ancient hiflorians ; they
cioubtlefs had druids, and followed in every particular
the religion of their anceftors. Allowing, however, that
they had no affinity to the Celtes, yet it may eafily be
fuppofed, that the perfecutions which the Romans carried
on againft the druids in Gaul, obliged them to ieek re-
fuge in Germany ; and that they there inculcated their

do&rines,

1 88 Of the orders of men in Part III.

come tinforefeen and unexpected ; and
their fears and their hopes are perpe-
tually agitated. They turn with timid
and anxious minds to explore thofe in-
vifible agents who difpofe of their hap-
pinefs or mifery. They try to appeafe
their refentment, or to conciliate their
favour ; and their grofs conceptions af-
iigning them particular places to inha-
bit, they pour out in thefe their thanks
or lamentation. As yet, every indivi-
dual leads, with IMS own hand, the
vicHm to the altar, and performs him-
felf the rites of devotion. But in the
progrefs of fociety, the habitations of
the gods requiring protectors ; and ce-
remonies having multiplied to atone for

dnflrines, and eftablifhed their authority. It may likewife
be imagined, that the German armies which had been
hired into the fervice of Gaul, or which had paffed into
that country from the love of plunder, brought into
Germany the drviids, and their religion. The Celtic o-
r'»;:n, however, of the Germans, i?, I think, fa clearly
aioj-uir.ee!, tha: there feenis to be liule occafion for thefe
kions.

the

. 5. Germany and England. 189

the growing vices of men ; and indivi-
duals being unable or unwilling to dif-
charge them, while they fought to re-
lieve their neceflities, or to gratify their
pleafures ; it was neceflary that a felecT:
number fhould be chofen from the
croud, to defend the former, and to ce-
lebrate the latter. Hence the origin of
priefts.

The care of religion in Gaul and
Germany was intruded to the druids ;
and no rite (2) of public or of private
devotion was performed without them.
The interpreters of the will of heaven,
they were regarded as facred, and were
at all times neceflary. They practifed

(2) Cafar^ lib. 6, c. 13. " Illi rebus divinis interfunt,
facrificia publica ac privata procurant, icligiones inter-
pretantur : — "" Dioaorus Siculus obferves to the fame
purpofe, '* Nee cuiquam facrum facere abfque philofo-
pho, fas eft. per eos enim, ut divina; naturae confcios, et
quad collocutores, gratiarum facra diis offerenda, per
hos internuncios bona ab illis expetenda effe, cenfent."
M. 5.c. 31.

theii

I go Of the orders of men in Part III,

their rites in dark groves (3) ; and their1
fuperftitions, though grofs and unna-
tural, fhocked not the underftanding of
an ignorant people. They employed in fa-
orifice every method of art and of cruel-
ty (4) ; and furveyed the increafe of their

dominion

(3) Groves were the firil places of religious worfhip.
See Pliny, lib. 12. c. I. and Gen. c. 12. <v. 6. 7. "Si
tibi occurrit," fays Seneca, " vetuftis arboribus et folitam
altitudinem egreflis frequens lucus, et confpeclum cceli,
denfitate ramorum aliorum alios protegentium fubmovens :
ilia proceritas fylvas, et fecretum loci, et admiratio um-
brae, in aperto tarn denfae, atque continuse, fidem tibi nu-
minis facit." Ep. 41. It is not till men have raifed ha-
bitations for themfelves, that they think of e/eciting tem-
ples to their deities.

(4) Cafar, lib* 6. r. 16. " — Immani magnitudine H-
mulacra habent ; quorum contexta viminibus membra
vivis hominibus complent ; quibus fuccenfis, circumvent!
flamma exanimantur homines. Supplicia eorum, qui in
furto, aut in latrocinio, aut aliqua noxa fint comprehend,
gratiora diis immortalibus eiTe arbitrantur : fed, quum e-
jus generis copia defecit, etiam ad innocentium fupplicia
dcfcendunt." Diod. Sic. lib. 5. c. 32. " Maleficos enim
per quinquennium detentos, palis in honorem deum fufii-
gunt, et fuper grandi pyrarum itrue cum aliis prirnitiis
immolant. nee aliter captivis, quam holiiis ad d-. urn fi-
cra abutuntur. Nonnulli ipforum etiam animalia btllo

capta

Se£t. 5. Germany and England. i g i

dominion (5) in the fears and admira-
tion of their votaries.

Long obfervation, and the commu-
nicated reflection of fo confiderable an
order, had inftruded them in many
branches of fcience. They were {killed
in particular in aftronomy and phyfic.
By the former, they foretold the revo-
lutions of the heavenly bodies ; by the
latter, they performed many cures ; and
the unthinking vulgar afcribed thofe
effects to their .free communication
with the gpds. Their knowledge they
imparted folely to the initiated (6), while

capta una cum hominibus trucidant, aut comburunt, a-
liove fupplicii genere tollunt." See alfo Strab. Rer. ge&-
grapb. lib. 4.

(5) I (lay not to examine into the belief and fuperfti-
tion of the druids ; for I do not write their hiftory. i
ipeak only of their influence in fociety, and on manners.

(6) C<rfar, lib. 6. c. 14. — Annos nonnulli vicenos in
aifciplina permanent ; neque fas e/fe exi^imant, ea literis
mandare ;— — •

192 Of the orders of men in Par till.

an oath not to be violated bound them
to filence.

The fuperftition of the people indul-
ged them in the greateft immunities.
No favour, it was thought, could repay
their fervices. They neither contribu-
ted to the.expences of government, nor
ferved in wars (7) ; and it was a gene-
ral ambition (8) to enter into their or-
der, Kings, equally with the meaneft
of their fubjeds, fubmitted to thofe re-
ligious tyrants. Even the fierceft paf-
fions of the mind were obedient to their
fway. They oppofed the refentment of
hoflile and embattled armies, and the
fwords dropped, as by enchantment (9),

from

(7) Ctffar^ HI). 6. c. 14. Druides a bello abefleconfoe-
runt, neque tributa una cum reliquis pendant; militis
vacationem, ornniumque rerum habent immunitatem.

(8) The fame author obferves in the fame place,
" Tantis excituti prasmiis, et fua fponte muhi in difci-
plinam conveniunt, et a parentibn* propinquifque mit-

(9) Diod. Sic. lib. ^. c. 31. Inter adverfas fepe a-

cies, dum ilrid^ls enfibus et protentis hafti3 inter fe exer-

citus

Seel. 5. Germany and England. j 9 3

from the hands of the warriors. They
devoted, on many occafions, the fpoils
of an enemy to their gods ; and in their
confecrated forefts did the deluded fol-
dier heap up the prizes of victory. No
one dared to conceal or to abftracl: any
part of the booty : the cruelleft tortures
and death punifhed the impiety (10):
and the gold and filver, and other pre-
cious acquisitions of war, were untouch-
ed, and unguarded.

But it was not folely over matters of
faith, and of religion, that they extend-

citus propinquant, in medium progrefli, ac fi beftias in-
cantamentis cicurarent, proelia dirimunt. Sic apud fero-
ciflimos quoque barbaros, fapientise ira cedit j et Mars re-
vereturMufas.

(10) Cafar^ lib. 6. f. 17. — Quum proelio dimicare
conftituerunt, ea, quaebelloceperint, plerumquedevovent.
Quae fuperaverint, animalia capta immolant : reliquas
res in unuin locum conferunt. Multis in civitatibus ha-
rum rerum extruftos tumulos locis confecratis confpicari
licet. Neque faepe accidit, ut negiecla quifpiam religione,
aut capta apud fe occuhare, aut pofita tollere auderet ;
graviffimumque ei rei fupplicium cum cruciatu conftitu-
tum efl.

o e

J94 Of the torders of men in Part III.

ed their authority. They intruded into
the public aflemblies of their country ;
and, claiming a civil and criminal ju-
rifdiction (n), they heard the com-
plaints, and decided the difputes, of
ftates and individuals. The moft im-
plicit obedience was paid to their judge-
ments ; and, what feems very fmgular,
they inflicted themfelves the punifh-
ments they decreed (12), nor allowed

that

(l i) Ctefar, lib. 6. c . 1 3. — fere de omnibus controverts,
publicis privatifque, conllituunt * et, fi quod eftadmiffumt
facinus, ficsedes fac~la, fi de hereditate, fi de finibus con-
troverfia eft, iidem decernunt ; praemia pcenafque confti-
tuuiit :• —

{12) Tacit, de M. G. c. 7. " — -neque anlmadvertere,
neque vincire, neque verberare quidem nifi facerdotibus
permiflum : — "

In early ages the power of dooming to punifhment,
and the aft of punifhing, are clofely united in the rude
conceptions of mankind. Hence perhaps it proceeds,
that judges are at firft the executioners of their own fen-
tences. This fa& is evidenr, noc only from the example
of the German druids, but likewife from the practice of
the Hebrews. See i Sam, c. fj. <v. 33. mAExod. f. 32*
<v. 26. £5V. At a time when the power of a public is

beginning

Sect. 5. Germany and England. 195

that privilege to be communicated to
others. The refractory and unyielding,
they removed from all concern in reli-
gious duties : they denounced againft
them the fentence of interdiction. And
this act was attended with the moft ter-
rible confequences : The unhappy per-
fons incurring it were denied all accefs
to the councils of their country, and to
every exercife of public worfhip : they loft
the protection of law : the arms of their
countrymen were lifted againft them :
they were accounted wicked and im-
pious : they were incapable of rank and
of office : their prefence and intercourfe
were avoided as contagious (13) : and

expelled

beginning to be conceived and acknowledged, it Teemed too
great an exertion over the liberties of the people, to, al-
low the meaneft of their number to punifti them for of-
fences* It is beautiful to obferve how the minuteft cir-
cumftances of ancient cuftoms are corrected and {bftened
by the light and humanity of modern manners.

( 1 3 ) Cafar, lib. 6. r. 13. " — Siqui autprivatusaut p-J-
blicus eoLum decretonon (tetit, facnrkiis interdicunt. Hsc
pcena apud eos eit graviflima. Quibus ita eft interdi&um,

O 2 it

Of the orders of men in Part Ill-
expelled from the foeieties of men*
death alone could relieve their wretched-
nefs. So great was the influence of
the druids !

SECT. VL

Of the Saxon clergy.

IT will be obferved, if we attend to
the hiftory of mankind, that the
change of religious principle has not

ii numero impiororri fcc fceleratorum habentur j \\\
omnes decedunt, aditum eorum fermonemque defugiunt,
ne quid excontagione incommodi accipiant: neque iis pe-
tentibus jus redditur, neque honos ullus communicatur."
It is not incurious to remark, that outlawries took pro-»
bably their rife from this druidical inrerdi&ion. They
agree in every particular. An outlaw forfeited his coun-
try and property : he was debarred from all intercourfe
with his friends, and could receive no affi (lance from
them. To furnifti him with food or lodging, or to perform
to him any office, was to incur the penalties in which he
was liable. See Krafton, lib.}, c. 13.

always

Seel. 6. Germany and England. ~j 97

always the greateft force on their con*-
dud: and affairs ; and that in every pe-
riod they are generally governed by the
terrors of a mean fuperftition. The al-
teration in the mode of being to which
Nature has fubjected her offspring, and
which, though in itfelf of fmall mo-
ment, appears fo alarming to the weak
and feeble ; tjie uncertainty of their fu-
ture deftination ; the dread of invifible
powers, whq mix, it is fancied, in hu-
man concerns ; and the myfterious afped:
of every fyftem of belief, or of worfhip ;
thefe general caufes, daggering the minds
of men, have ever prepared them for
prieftly dominion.

The fucceflbrs of the druids, though
they taught a more enlarged doctrine,
fcrupled not to advance, with all their
art and induftry, the intereft of their
order; and they met not with oppofition
from the people. The minifters of the
true God were no lefs ambitious than
thofe of Odin ; but, while they enjoyed
many fources of influence which were
'O 3 common

J 98 Of the orders of men in Part III.

common to thefe, they poflefTed others
equally powerful, by which they were
able to fecure and to extend their autho-
rity.

The court of Rome had gradually e-
re&ed within the different kingdoms of
Europe, a fabric of policy to fubjec~t
them to a foreign jurifdidion. The
chuich became every where active to
enlarge the Papal prerogative, and was
every where fupported by it. The Sax-
ons, who owed their converfion to the
fee of Rome (i), were difpofed on that
account to fubmit more implicitly to its
direction. No circumftance was omit-
ted to heighten the veneration conceived
for it ; and their clergy derived thence a
confiderable power.

The law of celibacy, which was af-
terwards extended over England, was firft
known in the reign of Edgar (2), and

(i ) Spel. Cone. torn. i. p. 940 Gofcel. de vit. St. Aug.
In torn. 2. Angl. Sacr.

•{2} Spel. Cone, toni, i. p. 476.

tvas

Sect. 6. Germany and England. 1 99

was well calculated to promote their
glory. Unconfcious of all thofe tender
connections which pleafe and agitate
other men, and which bind them, with
fo firm a cement, to fociety and their
country, they perceived no other object
but their own advantage ; and to this
they applied all their {kill and leifure.
They were feparated from the reft of
mankind, to invent arts to deftroy
them.

The alteration which had happened
in the ftate of land, having rendered
them capable of property (3), all orders
of men were ambitious to endow them
with territory (4) \ and it may fafely be

affirmed,

(3) Plafwahas remarked, that Pope Urban firft or-
dained that the church might receive land and pofleffions.
Before that period, the faithful fold their eftates, and gave
the value of them to the church.

(4) " It was cqftomary in the Saxon times, "fays Speltnan,
to make grants to perfons intellectual and invifible, as to
God himfelf, to the blefTed Trinity, to the apoftles, and
to holy men." Reliq. SpeL p. 239. The clergy found
their account in this ufage ; Patrimonium Chrijttt Dos ec-

O 4

20O Of the orders of men in Par till.

affirmed, that the bulk of all the land
in the kingdom has at different times
been veiled in them. The power ac-
cruing from their riches was infinite.
Dependencies were raifed without num-
ber ; and their vaflals and retainers form-*
ed a body, who felt and fupported their
intereft.

The charters (5) they received allow-
ed

€lejiat Dosjponfie Chrtfti, Sac rat a poffejfio, Pr tedium fan-
Bum : thefe are a few of the expreflions which denoted
their po/Teffions. The piofufe length to which men car-
ried their liberality to them, is thus remarked by Meze*
ray : " Les rois," fays this hiftorian, " et les grands feig-
neurs s'efforfoient a P envy a qui feroit plus de donations,
et de plus beaux prefens aux eglifes ; ils mettoient dans
leur facre threfor jufqu' a leurs ceintures, leurs baudriers,
leurs vafes precieux, leurs habits quand ils eftoient en-
richis d'or et de pierreries, des meubles, et des raretez,
qui eftoient plus de curiofite que d* ufage. C'efloit a qui
baftiroit le plus d'eglifes et d'hofpitaux, et a qui fonde-
roit le plus de monafteres." Air* Cbronol. torn. \^

(5) The firfl charter or writing regarding lands an4
privileges, was made by Withredus King of Kent: it
was kept in Chrift-church at Canterbury for pofterity to
imitate ; and was written in the Saxon tongue. Previous

to

Sett. 6. Germany and England. 20 f

ed them a royal jurifdidlion (6) in their
territories. All caufes, whether civil or
criminal, were tried by their judges ;
and they received the iflues and the
profits arifing from them. They hacj

the

to that period, the Saxons made conveyance of their
lands, without deed or writing, by delivering a turf,
oifpear, a J}ajf, an arrow, or Tome other fymbol. This
was done before a number of witnefles. And hence
the land difpofed of in this manner had the name
of folkland '; the aflurance of it refting in the teilima-
jiy of the folk, or people. It is farther obfefvable, that
before the time of Edward the Confeflbr, the Saxons
iifed no feal to their charters but the fign of the crofs ;
and what feems very fingular, deeds were conceived in
thofe ages in pretty much the fame form in which they
are written at prefent. So unrefining are men of bufi-
nefs! Reliq. SpeLp. 8. 233.235.236. Spel. Cone. torn, i,
^.125.319.

(6) A charter, for example, from King Edgar to the
tnonaftery of Glafton, has this claufe : " Eandem — Ji-
bertatem et poteftatem quam ego in curia mea habeo,
tarn in dimittendo quam in puniendo, et in quibuPiihet
^mnino negotiis, abbas et monachi prasfati monafterii in
fua curia habeant." And we read, in a grant by King
Athelbert to the monaftery of Canterbury, " Monaile-
fium — condidi, et cum ipfa terra, et' cum omnibus quze
ad ipfum monafterium perrinent, perpetua libertate donavj,
adeo ut nee mihi, nee alicui fuccelTorum meorum regum,

nee

202 Of the orders of men in Part III.

the cuftody of prifoners, and made de-
livery of them at their own will : and no
bailiff, or other officer of the king,
could exercife any duty in their lands.
They had a market and gallows in
their territories (7) ; and could condemn
the chatties of fugitives and felons.
They could make war of their private
authority on their enemies (8) ; and
while they publifhed the doctrines of
peace, they gave a different leffon by
their practice. They had the privilege
of ftamping money (9) ; and though

they

nee ulli unquarn poteftati, five ecclefiafticae, five feculari,
quicquam inde liceat ufurpare, fed in ipfius abbatis fint
omnia libera ditione." Monafl. Anglic, torn. I. p. 16,

fc?24.

(7) Madox, Bar. Angl. p. 152.

(8) Brujfil, liv. 2. fk. 3. They alfo named cham-
pions, and often out of their own order, to fight in their
caufes.

(g) LL. JZtbeljl. tip. Wilkins9p. 59. " In Cantuaria
fint vn monetarii; quatuor regis, duo epifcopi, et unus
abbati?.

In

Sect 6. Germany -and England. 203

they preached the difregard of tempo-
ral advantages, they yet courted and
purfued them with a more unrelenting
induftry than other men. The greateft
lords in the kingdom porTefled not higher
powers, or enjoyed more diftinguifhed
prerogatives.

They claimed, as well as the druids,
an exemption from war and taxes ; nor

In Roffenfi civitate tres, duo regis, et unus epifcopi."
See alfo Hale, Hift pladt. cor. torn. i. p. 191.

The abbot of Canterbury had cuneum monetee, allow- .
ance of mintage and coinage, fays Somner, in righc of
his abbacy. Thome (he adds) wrice? thus of Silvefter,
the forthy-fifth abbot, who died anno \ 161, and was the
laft who enjoyed it: •' Memorandum quod ifte Silvefter
abbas, et multi praedeceflbres ejus abbates, habuerunt cu-
neum monetas in civitate Cant, ficut per ioquifitionem fa-
Oam per Arnoldum Ferre, Wulfinum Mercere, et alios
qui jurati dixerunt, quod quidem Abbas S. Aug. Silveftec
nomine habuit in civitate Cant, unum cuneum monetae,
et Elumdus Porre cuilodivit cuneum illud ex parte illius
abbatis ; et quando ille abbas obiit feifita fuit abbatia in
manu domini regis una cum prasdiclo cuneo, nee unquam
aliquis abbas qui ei fucceilit, illius cunei recuperavit fei/i-
nam. Et fuit ifta inquifkio hifta temporibus Henrici Se-
cundi Regis, et Regis Richardi filii ejutdem." Antiy. of
Canterb. p. 55.

were

2O4 Of the orders of men In Part III.

were their lands burdened with fervices,
They held in Frank- Almoigne (10), and
furnifhed no fecular aid, but a fupply
in times of invafion, and for the build-
ing and repairing of caftles and bridges
(11); an obligation (12) to which all
the territory in the kingdom was alike
fubjeft.

It was not lawful, nor had they the

(jo) The tenure of Frank- Almoigne was fb called, be,-
caufe the lands given were faid to be in free alms, in //.
leram eleemofynam. And thofe (fays Littleton) who held
in this manner were only bound to make orifons, prayers,
mattes, and other divine fervices, for the foul of their
grantor, or feoffor. lib. 2. fe£l. 135. " Libera fit eccle-
fia, fruaturque fuis judiciis et reditibus, feu penfioni-
bus. Pro rege preces riant, mandatifque ejus, non co-
gente neceflitate, fed ex fponte obediunto." Jud. Witbr,
€. I. ap. Spel. Cone. torn. i. p. 194,

(u) The charters to the church have generally a
claufe to this purpofe : " — Sit autem praedidla terra libera
ab omnibus fecularibus negotiis praster expeditionem, et
pontis arcifve conftrudionem." Mono/}. Angl. torn. 2.
p. 858. See likewife Spelman's GloJ/aryy we. Burgbbote.

(i 2) Spelman of Feuds and Tenures, p. 22. Spel. Cope,
torn, i » p. 256.

power,

Seel. 6. Germany and England. 205

power (13), to alienate their pofleflioris
Their influence therefore and confidera-
tion were perpetually increafmg, while
new acceflions of wealth were ever flow-
ing into their order.

They called in to advance their caufe,
every art they poflefled of invention,
and every aid of learning. They af-
fected the Roman language in their
deeds (14); and thefe were, on that ac-
count, moft frequently compofed by
themfelves. Hence thofe tedious enco-
miums they contained, extolling the
piety of donors ; hence thofe bitter
curfes and maledictions they denounced
againft all perfons who fhould invade or
difpute the poiTeffions of the church
(15); and hence all that anxious care

they

(13) Mezeray, Abr. Chr. torn. i. p. 280.

(14) Spel. Reliq. p. 234.

(15) " Quifquis," fays a charter of King Edmund,
« — benevola meiue meam donationem ampliare, et pri-
viiegii dignitatem fervare fatagerit, in hoc praefenti feculo,
vita illius profpera fit, et !ongiturn«e vitas gaudia leneat.

Si

Of the orders of men in Part III,

they expreffed, that its property (16)
might defcend unimpaired, and in feeu-
rity, to the moft diftant ages.

But the free and extenfive territory
they enjoyed was infufficient to fatisfy
their rapacity. A fee was given to the

Si quisautem, propria temeritate, violenter invadere tera-
ptaverit, fciat fe, procul dubio, ante tribunal diilri&i ju-
dicis titubantem, tremebun^umque rationem reddituram,
nifi prius digna fatisfa^'tione emandare maJuerit." M. A,
torn. \. p. 15. A charter of Athelbert fays more boldly,
" Si quis vero de hac donatione noflra aliquid minuere,
aut irritum facere temptaverit, audloritate Beati Papse
Gregodi, noftrique apoftoli Auguftini, fimul et noftra im-
precatione, fit hie fegregatus ab omni fanftas ecclefiae com-
munione, et in die judici , ab omni ele&crum focietate.'*
Af. A. torn. i. p. ^6t. And a charter by King Edgar has
thefe words : " Quam (fc. abbatiam) quicunque in ali-
quo violare piaefumpferit, ipfius Summi Prsfidis Petri, et
Romans Jerarchiae, omniumque facrorum ordinum ani-
madverfione, in in/ernum zeternum damnetur. Qui vero
provexerit, et defenfaverit, in forte electorum Dei remune-
retur." M. A. torn. i. p. t6.

(16) "Precor," fays a charter of a Saxon king, "omnes
fuccefibres meos, five filii, five fratres, five externi reges
lucceflerint, ut hoc noftrum partum ita fervent inviolatum,
ficuti volunt recipere redli'udinis praemium, etevaderera-
patitatii fupplicium." M. A. torn. i. p. 64.

4 church

Se£t.6* Germany and England. 207

church at the feaft of St. Martin (17) :
a tenth of all the fruits of the kingdom
was claimed by the churchmen, a tenth
of all domeftic animals, and a tenth
(18) of the labour of individuals. They
exacted a tribute three times a-year for
luminaries (19) ; a tribute was affixed to
every plough (20) ; and no man could
die, but his goods (21) were aflefled by
them to a certain amount. The blind
zeal of the people even carried them to

(17) LL.Tnae ap. Wilkins, p, 15. Spel. Cone. torn. i.
p» 185. 402. 531. &c.

(1 8) Spel. Cone. torn. i.p. 100. 259. 298. 30$. 454.
610. 620. &c. " Some canonifts1' (fays Hume} " went
fo far as to affirm, that the clergy were imitled to the
titfte of the profits made by courtefans in the exercife of
their profeflion." W. i.f. 51.

(19) Spel. Cone. torn. i. p. 517. 545. 563. Wilkins,
p. 130.

(20) Spel. Cone. torn. i. p. 517. £sV.

(21) Wilkins, p. 108. 113. 114. 121. 130. Ridley's
view of civil and ecclefiaflicdl law, ch* 2. feet. ;.

make

5o8 Of the orders of men "in Part III.

make payments to the fee of Rome (22) ;
and the fevereft penalties and fines pu-
nifhed the negled: of thefe tributes and
taxes.

The place too (23) they obtained in
the general council of the nation fur-
niihed them a fource of the greateft
authority. This privilege they enjoyed
in common with the druids ; and when
William had fubjedted their pofleffions
to tenure (24), they claimed it as barons.

The

(22) Spel. Cone. torn. i. p. 230. 311. 343. 377. 392.

(23) " Ego ^Ethelftanus Rex confilio Wulfhelmi Ar-
chiepifcopi, er aliorum etiam Epifcoporum meorum prae-
cipio,1* &c. Wilkins, p. 54. " ^Edmundus Rex congre-
gavit magnam fynodum in civitate Londini, fanfto Paf-
chali tempore, utriufque tarn ecclefiaftici ordinis quam
politici. Ibi erat Oda et Wulfttan Archiepifcopus, et
raulti alii Epifcopi contemp! antes animae fuae falutem, et
corum qui illis fubje&i erant." Wilkins, p. 72.

(24) Seld. tit. hon. part ^. cb. 5. feS. 19. BlackJ?»ne,
Comment, b. i. />. 151. This change, it muft be remark-
ed, was made with confent of the parliament, and not by
William of his private authority. See the very learned
and elegant hiftory of Henry If. which is juft now pu-

blifhed.

Se£t 6* Germany and England. 209

The ardour with which they clung to-
gether, and the afcendency they acqui-
red, as poffeffing all the learning of the
times, made them frequently able to di-
re£t and govern the a£ts and delibera-
tions of that great afTembly.

They fat alfo, like the German druids,
in all inferior courts with the princes
or earls (25) ; and their power being
thus fpread throughout the kingdom,
they could turn their influence to every

fide,

bliftied. vol. i. p. 43. 4^7. " King William I." (fays
Madox) "found the archbimop, and biftiops, and feverai
of the abbots and priors of England, pofiefTed of divers
lands and rents. He commanded them to make proof
that their pofleflions were rightful. This proof was call-
ed dirationare, to dirationeitet or deraigne. When they
made out their right to their lands and tenements, the
King continued them in peaceable poffeffion ; but charged
their lands with military fervice j that is to fay, he en-
feoffed them, to hold of him and his heirs, by the fervice
of fo many knights, to wit, in proportion to the quantity
and value of their lands and tenements." Bar. Angl,
p. 25. See alfo Baron Gilbert^ hiji. of txcheq. ch. 4.
A5S-

(25) LL. Eadgar, c. 5. " Quaeratur centurise conven-

tus, ficut antea inilitutum erat ; et habeatur ter in anno

? conventus

Of the orders of men in Part III,

fide, and to every objed (26) of tempo-
ral government.

Thefe are fome of the principal caufes
which contributed to give power and

weight

Conventus oppidanns, et bis provincialis conventus : ct
interfit conventui provincial! epifcopus et fenator, et
poftea doceant tam divinum jus quam humanum."
LL. Cnut. c. 17. " Et ter in anno habeantur comitia
municipalia, et duo conventus provinciates, aut plure*
etiam : et illis interfit epifcopus ac fenator, et ibi u-
bique doceatur tam jus divinum quam humanum." Oz-
///. Kar. et Lud. lib, 4. tit. 71. ap. Lindenbr. pt 904.
" Ut omnis epifcopus, abbas, et comes, excepta infirmi-
tate, vel noftra juifione, nullam excufationem habeat,
quin ad placitum miflbrum noltrorum veniat : aut talera
vicarium fuum mittat, qui in omni caufa pro i'lo reddere
rationem poflit.1' See alfo Se/d. hift. of tithes, r. 14,
fe8. i. The Bifhop, it may be obferved, or fpiritual
judge, ufed to carry with him to court a look of canons
not only to direct him in his decrees, but as an enfign of
his authority ; and the Earl, who was the temporal judge,
carried his dotne-book with him, which was the body of
the temporal law, for the fame purpofes. From hence alfo
fome conjecture comes the name of the famous book call-
ed Doomf day -book. See F or tefcue- Aland's notes en For-
te/cue on monarchy, p, 29.

(26) The clergy fat no longer than the Saxon period
in the county and inferior courts. The reader may fee,
in Brady s Appendix, p. 1 5. the charter of William, which
Separated the civil and ecclefiattical jurifdiclions. Though

Urn

Se£t. 6. Germany and England* 2 1 1

weight to the clergy (27) ; and when
we confider the ftrength of them, we
need not wonder that this order has
been accounted as facred, and adorned
with the greateft immunities. We need
not wonder that oaths given in their
prefence were of all others the moft
binding, that deeds acknowledged before
them were the firmeft fecurity, and that

this aft confined them to ecclefiaflical pleas ; yet under
that name they included many civil caufes. They claim-
ed, for example, an exclusive privilege to judge in all
matters matrimonial and teftamentary. It alfo appears
remarkable, that though the Saxon laws allowed the chil-
dren and relations of intejtate perfons to fueceed to their
moveables ; yet the clergy in pofterior times confecrated
all fuch goods to pious ufes. See ffilkins, p. \ 44. and
Bacon's difcourfe, p. 89. 144. So that this feparation of
courts, though intended to crufh the clergy, was in fome
refpefts favourable to them.

(27) The obfervations in this fe&ion refer to the Saxon
dnves. They will not apply, and I defire they may not
be extended, to the prefent clergy of England. There
is not perhaps in the world an order of $riefthood more
refpeftable.

P 2 churches

212 Of the orders of men in Par till.

churches (28) afforded an afylum
and protection to the moil hardened
violators of human laws. To beftow
a due reverence on princes, was to
fully the dignity of this order ; to give
the way, to difmount from horfeback,
or to go too far in approaching them,
were ads of unpardonable humility
(29) ; and the compofition or price of
blood was higher for the archbifhop
(30) than for the king. To wound a
churchman, to break the peace of the
church, and to abftrad: any part of its
riches (31), were the greateft crimes.
To endow monafteries, to fubmit to pe-
nances, and to bend in a bafe fervility
to monks, were the greateft virtues.

(28) Spcl. Cone. torn. i. p. 182. 337. 365. Wilkins,
p. no.

(29) Bacon's difcourfe, p. 16.

(30) Wilkins, p. no.

(31) Spel. Cone. torn. i. p, 264. 265, 620. Mezeray,
, Chr, torn. i. p. 279.

Even

Se£t6. Germany and England. 213

Even the objects of proper and beco-
ming worfhip were forgot amidft the ad-
oration and refpeft which were paid
to fhrines and images (32), to copes,
tabernacles, and veftments, to altar-
cloths, crucifixes, reliques, and all the
trumpery of a defigning fuperftition. In
the dejection and alarm which arofe in
the minds of men, the genius of war
.funk, and the purpofes of fociety were
well-nigh neglected. Warriors laid a-
fide their fteel, and their armour : they
put on the habit of monks, and fancied
they were acceptable to the Deity, as
they grew ufelefs to mankind. Great
nobles, and ladies of the firft rank (33),
renounced their figure in fociety, to
diftinguifh themfelves in penance, and

(32) Spel. Cone. torn. i. p. 594.

(33) Mexeray, Abr. Cbr. torn. i. f. 176. " Le plus
foible fexe n'avoit pas moins de force pour cette vie peni-
tente, que les hornmes. Les plus nobles filles cherchoient
un efpoux dans les cloiftres, et les veuves y trouvoient leur
confolation. Les princefles en baitiflbient exprcs pour s'y
retirer,

P 3 the

2 14 Of the orders of men in Part III.

the practices of an illiberal devotion ;
and kings (34) threw afide the purple
and the diadem, to govern cloyfters.

Do we turn over the eccleiiaftical an-
nals of almoft every nation, and of every
age ? we mall ftill be prefented with the
fame picture. The priefts of almoft e-
very religion have been alike ambitious,
and alike fuccefsful in their encroach-
ments on the civil rights (35), and the

(34) See a difcourfe, de prima inftttutione ntonaeborumt
prefixed to the Monafticon Anglicanum*

(35)! can recolledl but one exception in the ancient
world to this obfervation. The Romans, if I am not
miftaken, elected their priefts from the nobility, and the
civil magi ft rates | and connecting them with no great gain
or emolument, this order was considered as a part of the
civil power, Jt had no jntereft feparate from the Hate,
and the maxims which it followed were not oppofite to
thofe of the community. In no inftitution perhaps have
that people fhown greater wifdom ; and among the caufes
of their grandeur we ftiall find few fo powerful. It is
feldom mentioned, however, by their hiftorians ; and,
what is perhaps more iingu.!ar, it feems to have elcaped
the penetration of Monfefejuieu, in that invaluable trea-
tife, which a living genius of his own nation would in-
title, Hijioire Romaine, a l^ufage de* homntes 4'etat, e(
des fkilofophes, t-logf dt M. Montefyuieu, far M. </' Akm*
fart*

common

Se&.6\ Germany and England.

common underftanding of men. Nor
has the hiftory of human affairs a caufe
to offer more fubverfive of the progrefa
of refinement than the ghoftly practices
of prieftly power. They poifon and
confine the mind of the barbarian, when,
impelled by hope and ambition, he
looks forward with a generous ardour*
to better his condition, and enlarge his
views ; and in the moft cultivated ages,
they have erected their ftandard, and are
able to fupport their dominion by the
ignorance they eftablifli.

AN

A N

HISTORICAL DISSERTATION

•

Concerning the ANTIQUITY of the
ENGLISH CONSTITUTION.

PART IV.

Of the judicial arrangements in
Germany and England.

SECTION I,

Of the origin of Jujtice.

IN the judgements pronounced con-
cerning men, we are generally gui-
ded by the manners to which we
have been accuftomed. We forget, that

the

Seft. I. Of the judicial, &c. 217

the human mind is confcious of a pro-
grefs, and that mankind are ever exhi-
biting different manners, and a new
way of thinking. The good-natured
moralift may fancy, that in every age
the mind of the individual is ftill fen-
fible of right and of wrong, and feels
remorfe or approbation, as the ads of
juftice or injuftice are committed. But
no fentiment is more contradictory to
the hiftory of mankind.

Thefe are the diftinclions of refining
manners, and are totally unknown in
the firft period of fociety. The favage
goes forth into the woods, to procure
his fubfiftence, and to employ his cun-
ning and his force. He lays toils for
the ftrong, and overpowers the weak.
The animal he has caught, he robs of
its fur, and ufes for the purpofes of
life : his fellow-man, with whom he has
contended, he robs of the booty he had
gathered, or {tabs to the heart, as a de-
ftroyer of the game he purfues. At the
approach of night, he erects a tempo-
rary

21 8 Of the judicial arrangements in Part IV,

rary hut, which he forfakes with the fun,
to renew his ravages and plunder. In
the war he has declared againft nature
he knows no exceptions: every (i) ob-
ject he meets with is hoftile.

When prefled, however, by neceflity,
men have learned to provide for the fu-
ture, and conceive a kind of property
in the ftores they have hoarded ; and
when inftru&ed of their weaknefs in
the favage and folitary ftate, they have
united into bodies : it is in fuch a fi-
tuation that the virtue of juftice is dif-
covered ; it is then that the condition.

(i) Atheneu*) lib. 15. has recorded the fpeech of a
Scythian warrior, which, though he exifted in a more
cultivated age, may ferve to illuftrate and to prove
thefe remarks : " Pro magnis mihi funt divitiis, ha-
fta, enfis, pulchrumque fcutum munimentum corporis,
Cum hoc aro, cum hoc meto, cum hoc vinum fuave,
quod praebet vitis, pedibus tero : cum hoc, fuppHces me
dominum Tervi publici vocant : haftam qui non audet
comparare, nee enfem, nee pulchrum fcutum corporis
tegumentum, flexis ille genibus me adoret, dominumque
falutet, ac magnum efle regem vociferetur." The Gauls
told the Romans, " Se in armis jus ferre, et omnia for-
yirorum eiTe, — 1J Liv. lib. 5. c. 36.

of

Se&. i . Germany and England. 21 9

of individuals is made equal, that the
powerful are taught to with-hold their
violence, and that laws give prote&ion
to the feeble. The relapfe of the indi-
vidual into his former predatory courfe
is now confidered as criminal ; and
though he beholds with defire the flocks
of his neighbour, he muft not appro-
priate them. The party he attacks in
his good or in his perfon, conceives
hirnfelf injured ; he founds his com-
plaints to the public ; men obferve, that
the facred bond of their union is in-
fringed ; and they lead out the delin-
quent to the frontier, and expel him
from their fociety ; or make him expiate
by a fine, or by death, the guilt he has
incurred-

The community mean-while performs,
without blame, thofe ads of robbery
and oppreffion which it punifhes in in-
dividuals It authorifes (2) its youth-
ful

(2) Tacit. deM. G. c. 46. " Venedi — quidquid inter
Peucinos Fennofque filvarum acmontium erigitur, latro-
ciniis pererrant." This author has alfo obferved that
atti were addi&ed to ;he fame practice. ^«»«/. l&. \ 2.

220 Of the judicial arrangements m Part IV.

fal warriors to carry devaluation to fur-
rounding tribes ; and feeks to enrich
itfelf by giving poverty to its neigh-
bours. Its example feems to encourage
the vices of its members; but, from

f. 27. Tbucydides, lib. I. has mentioned th:s matter more
fully : " Glim Grseci, et barbari, quotquot in con-
tinence degebant, msrique vicini erant, quique in-
fulas incolebant, poftquam navibus alii ad alios mare
trajicere frequentius cceperunt, fefe ad latrocinia con-
verterunt, virorum potentiflimorum dudu [quod facie-
bant] turn quasftus fui cauia, turn etiam ut viftum pau-
peribus qua:rerent : atque adorti civitates nullis muris
murtitas, et quae pagatim incolebantur, [eas] diripiebant,
ct maximam vidus pattern hinc [fibi] comparabant*
Quod hoc facinus nondum ignom'iniam haberec, imo vero
nonnihil etiam gloriae potius afFerret. Hoc autem nunc
" etiam cum alii nonnulli, qui in continente habitant, ma-
nifefte declarant, quibus decori eft hoc egregie exercere,
turn etiam antiqui poetae, apud quos illi ultro citro-
que navigantes, ubique eodem modo interrogantur
nunquid fmt latrones : quod neque illi, quos interro-
gant, fa£tum ut fe i«ndignum inficientur, nee illi, quibus
.curae eft [rem ex illis] fcire [hoc ipfis ut probrum, et cri-
men] exprobrent. In Mediterraneis etiarn alii alios pras-
dabantur. Et ad hoc ufque tempus multi Graeciae [populi]
prifco more vivunt, ut Locri, qui Ozola? [Vocantur], et
u£toli, et Acarnanes, et qui finitimam horum agro conti-
nentem incolunt. Quinetiam ipfe armorum geftandomm
mos apud hos continentis incolas ex veteri latrociniorum
confuetudine permanfit." The reader may alfo confult
's Qdy/ey, book 3,

motives

Seel:. I. Germany and England. 221

motives of advantage, it corrects their
enormities. The neceflities and conven-
dons of men induce them very early to
regard juftice in the one cafe, but a
long experience is neceflary before they
acknowledge it, in the other.

The arrangements which, when join-
ed into a body, they employ for the
fupport of peace, and of order, though
rude at firft, and irregular, are well
calculated for the prefefvation of liber-
ty. The greateft equality prevails then
among the members of the tribe ; no
invidious diftmdtions have place ; the
offices of honour, and of truft, are gi-
ven 'indifcriminately to the brave and
deferving ; and juftice knows no dif-
ferences in the orders of men. No
other rank, than that of the citizen, is
diftinguifhed in fuch a period : no
other character is refpecr.ed. Thofe efta-
blifhments extend their influence to
more cultivated times ; and, while che-
rifhed by the people, they offer a bul-
wark to defend their rights againft the
power, the riches, and the factions, of
the great.

The

222 Ofthcjudictat Arrangements in Part IV*

The courts accordingly, or civil ar-
rangements, which were modelled in
Germany, preferved the independence
of the people ; and having followed the
Saxons into England, and continuing
their importance, they fupported that
envied liberty we boaft of. It is to thofe
courts, and to the forms of proceeding
there, that we are now to turn our at-
tentioa.

SECT. II.
Of Courts.

Hlftorians, judging of rude times
by the ftandard of a cultivated
age, have frequently concluded, that the
eftablifhments which arife in fociety are
the refult of intention and defign. They
feek for legiflators before legiflators
could exift ; and, while the greateft ig-
norance and inexperience have prevail-
ed,

Sect. 2. Germany and England* 22$

ed, they fancy, that the moft difficult
of the fciences had approached to per-
fection.

It is, however, by circumftance and
accident that rules are difcovered for
the conduct of men ; and fociety muft
have fubfifted for ages, and its different
appearances muft have been often un-
folded, before the wifdom of indivi-
duals could plan or project the arrange-
ments of nations. The tumult and con-
fufion which flow from intercourfe and
the focial connections, fuggeft firft the
advantages of order. Regulations are
then made, and forms of juftice are in-
vented. The actions and commerce of
the fpecies extend themfelves, and new
regulations are called for. Improve-
ments follow on improvements ; and
fchemes of government attain by degrees
their utility and value.

Before the fpirit of refinement has
given birth to artificial manners, the
higheft refpect and attention are produ-
ced by the exertion of fuperior quali-
ties.; and men willingly fubmit their

difput^s

t

324 Of the judicial arrangements in PartIV,

difputes where they have placed their
veneration. The talents of the mind,
or the ftrength of the body, could alone
give diftin&ion among the ancient Ger-
mans. Had a warrior difcovered fupe-
rior prowefs in danger, or fuperior wif-
dom in debate, he never failed to ex-
cite the approbation of his tribe ; and
while the notions of property and par-
ticular profeilions were yet unknown,
many of his countrymen fought ambi-
tioufly to procure his patronage. They
joined in his retinue, and added fplen-
dour to his appearance ; they defended
his character and perfon from infult
and peril; and in the (i) rude abun-
dance of his table, they found the pay
which rewarded their fervice. Moved
by the kindly commerce of affeclion,
and by that fond admiration which his
virtues had kindled in their minds, they

(i) Tacit, de M. G. c. 14. " Nam epulye quamquarn
incompci, largi tamen apparatus, pro ftipendio cedunt."
See fart r. ftft. i. and part z. feft. z.

regarded

Se£t. 2* Germany and England.

regarded him as the arbiter of all their
differences. To him they appealed, as
to a judge the moil proper, whether
they had fulfilled or neglected the duties
to which they were bound by their com-
bination and attachment.

As a chieftain led out his retainers to
the field, and governed them during
war ; fo in peace he fummoned them
together, and exerted a civil jurifdic-
tion. He was at once their captain
and their judge. They conftituted his
court ; and having inquired with him
into the guilt of thofe of their order
whom juftice had accufed, they aflifted
him to enforce his decrees.

This court was imported into Eng-
land (2) ; but the innovation which
conqueft introduced into the fafhion of

(2) It had the name of Halmot. Du Cange. " Hall-
motum, curia dominica baronis feu alterius domini, in
villis fuis et dominiis, in qua lites vaflallorum agitantur :
leu curia tribuum, wardarum, et focietatum in burgis et
urbibus. Vox Saxon, formata ex heal, Angl. ball, domus,
aula, et mot, conventus."

the

226 Of the judicial arrangements Part IV,

the times, altered fomewhat its appear-
ance.

The diftribution of the conquered
territory had furnifhed the chieftain
with land* He (3) retained a part of
his acquifition to his own life, and gave
out the remainder to his followers. An
intimate connection ftill fubfifted be-
tween them ; they were ftill bound to
attend him to war ; and ftill fubmitted
to his civil authority. But amidft the
occupations of property, and the low
concerns of private intereft, they for-

(3) " The chieftains, or lords," (fays a learned anti-
quary), " affigned a portion of their lands ad -vifium et
•ueftitum fuum, which they committed over to their foe-
men and hulbandmen, to furnifh them with corn, victuals,
and provifion for hofpitality ; and, briefly, all things ne-
ceflary to their domeftical and civil part of life. The
refidue they divided into as many fhares or portions a*
might well maintain fo many military men, whom then
they called their knights ; and thereupon the mares them-
felves knights-fees, i. e. Jlipendia militaria. And thefe
fees they granted over to each of their principal follow-
ers, furniihing them with fo many knights for the wars.'r
» 5,8.

got

2* in Germany and England* 227

got the refpect which they had formerly
paid to his perfonal qualities ; and he
was no longer felicitous to preferve
them. They confidered it as his only
merit, that he was poffefled of a manor.
Jurifdidtion, therefore, which in Ger-
many was the confequence of virtue
and ability, was now annexed to the
pofleffion of land.

The head or lord of the manor called
forth his attendants to his hall. He in-
quired, by their oaths, into the rents,
the reliefs, the wardfhips, and other
duties to which he was intitled ; and
impowered his bailiff to recover them.
He inquired into the breaches of cuftom,
and of juflice, which were committed
within the precincts of his territory ;
and (4), with his followers, who fat

with

{4) Greenwood of Courts- baron, ch. 3. and Scroggs of
Courts-leet, and Courts-baron, pt 56. It may be here re-
marked, that among the Saxons the baron-court had no
cognifance in matters criminal, unlefs the baron had the
king's charter, for that purpofe. Reliq. Spel. p. 51.
This may feena to contradict what I obferved concerning
Q, 2 the

228 Of the judicial arrangements Part IV.

with him as judges, he determined in
all matters of debt, and of trefpafs, to
a certain amount. He poflefled a fimi-
lar jurifdiclion with the chieftain in
Germany ; and his tenants enjoyed an
equal authority with the German re-
tainers.

But a mode of adminiftration which
intrufted fo much power to the great,
could not long be exercifed without
blame or injuftice. The German, gui-
ded by the candour of his mind, and
entering into all his engagements with
the greateft ardour, perceived not at
firft, that the chieftain, to whom he
iubmitted his difputes, might be fway-
ed in the judgements he pronounced,
by partiality, prejudice, or intereft ;
and that the influence he maintained

the privileges of the higher earls. Thefe privileges,
however, were confined to thofe earls, and we are now
difcourfmg of civil jurifdiftion in general. The fame ob-
jefiion may feem to lie againft fome other obfervations
which will be prefently made j and the fame anfwer will
apply to it.

with

SecT:. 2. in Germany and England.

with his followers, was too ftrong to be
reftrained by juftice. Experience in-
flru&ed him of his error ; he acknow-
ledged the neceflity of appealing from
his lord; and the (5) court of the hun-
dred was erected.

This eflablifhment was formed both
in Germany and England, by the in-
habitants of a certain divifion (6), who

extended

(5) The hundred was known in Germany under the
name of pagus. Tacit, de M. G. c. 12. " Pagus" (fays
Du Cange) " pars eft regionis : atque ut regio in pagos,
ita pagi in villas, oppida, et burgos, tributi erant." See
likewife Lindenbr, /. 1450. and Ealuzt torn. 2.. p. 915.
The following law of the Alemans proves ftrongly the
antiquity of this court. " Conventus autem, fecundum
antiquam confuetudinem, fiat in omni centena coram co-
mite, aut fuo mi/To, et coram centenario." Lindenbr.

/• 372-

(6) " The hundred," fays Gerva/e of Tilbury, in his
treatife on the exchequer, " confifted of an hundred hides
of land ; and an hide of land confifted of an hundred
acres." Hence Du Cange and Spelman feem to think,
that as a hide of land was the common pofleflion of an
ordinary family, this divifion might be conftituted by an
hundred families, and thereby receive its name. Other
antiquaries have imagined, that this divifion was fo
termed, becaufe, " foper decem decanos, et centum fri-

burgo

Of the judicial arrangements Part IV,

extended their jurifdidion over the ter-
ritory

burgos judicabat j" as it judged ever ten decennaries, or
an hundred friloroughs. Tjrrel, Introd. p. 80. There
appears to be more difficulty in this matter ihan is gene-
rally imagined. The latter fuppofition falls entirely to
the ground, when it is remembered, that the hundred
preceded the ereftion of the decennary. And in relation
to the former opinion, I would obferve, that the divifion
cf the hundred has been known, in different places, to
have coofifted of an unequal number of towns or villages.
This is proved even by Du Cangt and Spehnan. It con-
tained fometimes thirty or forty villages, fometimes ten,
and was often constituted by one village, A confiderable
inequality, therefore, muft have been occafioned in the
number of families which compofed thefe divifions. If
one village conftituted a court of this kind which con*
filled of an hundred families, forty villages conftituting
the fame court, muft doubtlefs have confitied of many
more families. I mould thence fancy it natural to con->
je&ure, that the courts of the hundred were compofed
without much regard to the number of families, or of hides
of land. And I am the more ready to rely on this con*
clufion, as thefe courts were known in Germany before
individuals had connection with land, and before families
could be diilinguiftied by their poITeiljons. Jt is alfo far-
ther conf.rmed, when we confider the rudenefs of the
German manners, which will not allow us to imagine,
that men mould then iiudy a very nice regularity in their
civil initiations,

If the territory and number of families which conftitu-
ted the hundred were uncertain, whence mall we fancy

that

Sed. 2. in Germany and England. 2,3 1

ritory they occupied (7). They bound
themfelves under a penalty (8), to af-

that this court got its name ? We muft have recourfe
on this head to Tacitus, who has aflifted us in former dif-
ficulties. The pagus in Germany, which, as has been
juft now obferved, correfponded to the hundred in Eng-
land, furnifhed, according to this author, an hundred
warriors for the fervice of the community. In rude times,
then, when the military virtues are much refpecled, and
when wars are the great objecl: of the care of nations, the
court which was formed by the pagus might get its name
from the chief circumftance which diftinguifhed that di-
viiion : it might be called the hundred court from the
hundred warrior Sj who were fupplied by the diltricl: over
which it prefided. " In univerfum sedimanti," fays Ta-
<itusy " plus penes peditem roboris : eoque mixti prce-
liantur, apta et congruente ad equeftrem pugnam velo-
citate peditum, quos ex omni juventirte dele&os ante aciem
locant. Definitur et numerus : centeni ex Jingulis pagis
fttnt : idque ipfum inter fuos vocantur, et quod primo m-
merus fuit, jam nomen et honor eft." de M. G. c. 6.

(7) It was the freemen in Germany, and the pofTeflbrs
of land in England, who were fuitors ?n the hundred
court. Thefe ranks of men were the fame. The alte-
ration which had happened in relation to property had
invefted the German freemen with land or territory.

(8) LL. Alaman. tit. 36. c. 4. ap. Lindenbr. p. 372.
LL. ^thelft. c. 20. & LL. Hen. I. c. 29. ap. Wilkins,
p, 60. & p. 248.

femblc

23 2 Of the judicial arrangements Part IV.

femble at ftated times (9) ; and having
elected the wifeft of their number (10)
to prelide over them, they judged, not
only of all civil and criminal matters
(n), but of thofe alfo which regarded
religion (12) and the priefthood. The

(9) Lindenlr.p. 372. " Ipfum placitum fiat de fabbato
in fabbatum, aut quali die comes aut centenarius voluerit,
a {eptem in feptem noftes, quando pax parva eft in pro*
vincia: quando autem melior eft, poft xnii noftes fiat
conventus in omni centena, ficut fuperius diximus." " This
court" (fays Bpdman) " was to be holden twelve times
in the year, that is, once every month ; but efpecially a
full appearance was required twice in the year ; in memory
whereof the fuitors are at this day called, at our Lady
and Michaelmas courts, by the fteward of the hundred."
Reliy. Spel. /. 51. and LI. Hen. I. c. 8. c5" 9.

(10) This judge was called the hundreder. It may be
remarked in this place, that the greateft care was obfer-
ved in the eleaion of fuch officers. " Ut judices, advo-
cati, centenarii, praepofiti, vicarii, fcabini quales meliores
inveniri po/Tunt, conftituantur ad minilleria fua exercenda."
Kaluz. capit. reg. Franc, torn. I. p. 472. See alfo the
fame volume, /. 366. and LL. Hen. \ . f. 8. ap. Wilkins,
p. 241.

(11) Reliq. Spel. p. 52. Baluz. torn. i.p. 19. 513.

(12) Bacon on the Eng. govern, p. 43. Dugdale, orig>
j uricl. c. ii,

judicial

Sect. 2. in Germany and England. 233

judicial power thus inverted in the peo-
ple was extenfive ; they were able to
preferve their rights ; and ( 1 3) attended
this court in arms.

As the communication, however, and
intercourfe of the individuals of a Ger-
man community began to be wider, and
more general, as their dealings enlar-
ged, and as difputes arofe among the
members of different hundreds, the in-
fufficiency of thefe courts for the pre-
fervation of order was gradually per-
ceived. The fljy re-mote, therefore, or

(13) LL. Edward, c. 32. ap Wilkins, p. 203. — "Cum
quis enim accipiebat praefefturam Wapentachii, [vel Hun-
dredi], die flatuto, in loco ubi confueverant congregari,
omnes majores natu contra [verfus] eum conveniebant,
et defcendente eo de equo fuo, omnes aflurgebant ei. Ipfe
vero erefta lancea fua ab omnibus fecundum morem foedus
accipiebat : omnes enim, quotquot.veniflent, cum lanceis
fuis ipfius haftam tangebanf, et ita fe confirmabant per
fontadum armorum, pace palam conce/Ta. — Quamob-
rem poteft cognofci quod hac de caufa totus illeconventus
dicitur Wapcntac, eo quod per tafturn armorum fuorum
ad invicem eonfosderati funt." The fame thing is hinted
at by Tacitus:—'1 ad negoiia,— -procedunt armati."
. G. c. 22.

count y-

Of the judicial arrangements Part IV.

county-court, was inftituted ; and it form-
ed the chief fource of juftice both in
Germany and England.

The powers, accordingly, which had
been enjoyed by the court of the hun-
dred, were confiderably impaired. Jt
decided no longer concerning capital
offences ; it decided not concerning
matters of liberty, and (14) the proper-
ty of eftates, or of flaves ; its judge-
ments, in every cafe, became fubje£t
to review (15); and it loft entirely (16)
the decilion of caufes, when it delayed
too long to confider them.

(14) " Ut nullus homo in placito centenarii neque ad
mortem, neque ad libtrtatem fuam amittejidam, aut ad
res reddendas vel mancipia judicetur : fed iila aut in pras-
fentia comitis vel mifforum noftrorum judicentur." Capit.
lib. 3. c. 76. ap. Lindenbr. p. 886. " Omnis controver-
iia coram centenariis diffiniri potefl ; excepta redhibitione
terras et mancipiorum, qua: non poteft diffiniri nifi coram
comite." Baluz. torn. \.p. 354.

(15) Lindenbr. p. 651. Baluz. torn. 2. p. 321,

(16) LL. Cnut. c. 1 8. ap. Wilkins.

Every

Se&. 2. in Germany and England. 235

Every fubjecl: of claim or contention
was brought, in the firft inftance, or by
appeal, to the county-court ( 1 7) ; and the
far!) or eoldorman (18), who preiided
there, was active to put the laws in ex*
ecution. He repreffed the diforders
which fell out within the circuit of his
authority: and (19) the leaft remiffion
in his duty, or the leaft fraud he com-
mitted, was complained of, and punim-

(17) Lib. conftitut. ap. Wilkins, p. 149. LL. Hen. I.
c. 7. Baluz. torn. i. p. 876. 971.

(18) The reader will remember the diftinftion former-
ly made concerning the fuperior and inferior earls. See
fart 3. feft. 3. I refer here to the latter.

(19) " De advocatis, vicedominis, vicariis, et cente-
nariis pravis, ut tollantur, et tales eligantur quales et
fciant et velint jufte caufas difcernere et terminare. Et
fi comes pravus inventus fuerit, nobis nuncietur/' Ba-
luz.. torn. \.p. 426. See alfo p. 689. 756. Earl Tofti,
for example, was outlawed, in the time of the Confeflbr,
for the fever ity and injuftice which he exercifed in his

county. The people boldly declared, " Se nullius

clucis ferociam pati pofle ; a majoribus didicifTe, aut li-
bertatem, aut mortem." Malmejb. lib. 2. /. 83. Ed.
franc, or Selden, tit. hon. p. 523.

ed.

236 Of the judicial arrangements Part IV.

ed. He was elected from among the
number of the great, and was above
the temptation of a bribe ; but (20) to
encourage his activity, he was prefent-
ed with a fhare of the territory he go-
verned, or was intitled to a proportion
of the fines and profits of juftice. Eve-
ry man, in his diftridt, was bound to
inform him concerning criminals, and
to affift him to bring them to trial (21) ;
and, as in rude and violent times (22),
the poor and helplefs were ready to be
opprefled by the ftrong, he was inftru&ed
particularly to defend them.

His court was ambulatory (23), and

(20) Spel. Gloff. p. 141. Baluz. torn. I. p. 259. 538.

(21) Baluz. torn. i. p. 19. 513.

(22) Murat. Antiq. Ital. torn. I. p. 400. Baluz. torn.
I. p. 171. 243.

(23) Dalton, officium vicecomitum, p. 405. Bacon,
p, 41. This court might be kept in any place within the
county.

aflembled

Sefl:. 2. in Germany and England. 237

aflembled only twice a-year (24), un-
lefs the diftribution of juftice required
that its meetings fhould be oftener. E-
very freeholder (25) in the county was
obliged to attend it ; and fhould he re-
fufe this fervice (26), his pofleflions
were feized, and he was forced to find
furety for his appearance. The neigh-

(24) LL. Cnut c. 17. ap. Wilkins. Capit. Kar.lil. 7.
c. 96. ap. Lindenbr. Its meetings were proclaimed a
fe'n-night before they took place. — " Summoneatur co-
mitatus feptem dies antea." LL. Hen. I. c. 51. But
there is mention made of county-courts, both in Germa-
ny and England, which met monthly ; and it has thence
been imagined, that there were two county-courts in both
countries. See LL. Baivar. tit. 2. f. 15. Baluz. torn. i.
p. 498. and Brady's bijhry, p. 74. A diftinclion accor-
dingly has been made between the Jhyre-mote and folk-
mote. The more able antiquaries, however, are agreed,
that thefe were expreflions for the fame court ; and that
the firft denoted its more ordinary, and the latter its more
extraordinary meetings. See Squire, p. 155.

(25) LL. Hen. I. c. 7. ap. Wilkins.

(26) Hicks, Diflert. epift. p. 4. LL. ^Ethelft. c. 20.
et LL. Hen. I, c. 29. Dalton, offic. vie. p. 406,

bouring

238 Of the judicial arrangements Part IV*
bouring earls (27) held not their courts
on the fame day; and (28) what feems
very fmgular, no judge was allowed, af-
ter meals, to exercife his office.

The druids alfo, or priefts, in Ger-
many, as we had formerly occafion to

(27) Baluz. torn. 2. p. 190.

(28) " Ut judices jejuni caufas audiant et difcernant."
LL. Longobard. HI. z. tit. gz.f. 4. ap. Lindtnbr. — "Nee
placitum comes habeat, nifi jejunus." Baluz. torn. 2.
^.329. " Addebatur" (fays Mitratori, in his diflertation.
concerning earls) " etiam fingularis, eaque lepida condi-
tio illorum judiciis, nempe ut nonnifi a jtjunis celebrari
poffent, quo prsecaverentur ventris pleni, live, utrotunde
loquar, ebrietatis malefana confilia in tra&andis juititis
lancibus. Nimir.um vel tune populis, e Germania prasci-
pue egreffis, grandes cyathi in deliciis eranr, et rara in
potantibus tempenmtia." Aniiq. ItaL torn. i. pt 400.
And 'Tacitus has remarked of the old Germans, " Diem
no&emque continuare potando, nulli probrum. Crebras
ut inter vinolentos rixze, raro conviciis, fepius caede et vul-
neribus tranfiguntur.— -Si indulteris ebrietati, Togge-
rendo quantum concupifcunt, baud minus facile vitiis,
quam armis, vincentur." de Mor. Germ. c. 22, 23. 1
would obferve, that from this propenfity of our anceftors
to an excefs in diet, it has proceeded, that jurors, or
jurymen, have not been allowed to have meat or drink,

or even to leave the court, till they had fettled their ver-
#&.

remark.

Sect. 2. in Germany and England. 239

remark, and the clergy in England, ex-
ercifed a jurifdi&ion in the hundred and
county courts. They inftruded the peo-
ple in religious duties, and in matters
regarding the priefthood (29); and the
princes, earls, or eoldormen, related to
them the laws and cuftoms of the com-
munity. Thefe judges were mutually
a check to each other (30) ; but it was

expected,

(29) " Ut epifcopi cum comitibus ftent, et comitea
cum epifcopis, ut uterque pleniter fuura minifterium per-
agere poflit," Baluz. torn. i . /. 871. Spelman remarks
concerning the earl, " Prsefidebat foro comhatus, non
fblus, fed adjun&us epifcopo. Hie ut jus divinum, ille
ut humanum diceret, aherque alter! auxiiio eflet et con-
iilio : praefertim epifcopus comiti, nam in hunc illi ani-
madvertere faepe licuit, et errantem cohibere. Idem igi-
tur utrique territorium, et jurifdiclionis terminus." Gloffl
in <wrb. Comes. And the fame author has obferved, when
talking of the hundred court, " Aderant hie thani, (quos
barones vocant pofleri), ut patet e LL. Ethelredi ca. i.
ipfique judices ecclefiaftici, cum partis illius clero. In
loundredo enim non minus quam in comitatu, una tune
agebantur quae ad forum pertinent ecclefiafticum, et quje
ad feculare : donee Gulielmus Conqueflor, divifis jurif-
didtionibus, hanc ab iila feparaviu" Gloff~. p. 303.

(30) Add. Lud. 3. tit. 16. 54. 64. Add. Lud. 4.
tit. 24.. ap. Lindeobr. Baluz. torn. i. p; 354. 450. 503.

torn.

240 Of the judicial arrangements PartIV*

expected, that they fhould agree in
their judgements, and fhould willingly
unite their efforts for the public in-
tereft.

But the prince or earl performed not,
at all times, in perfon, the obligations
of his office. The enjoyment of eafe,
and of pleafure, to which in Germany
he delivered himfelf over, when difen-
gaged from war (31), and the mean idea

he

torn. 2. p. 89. It appears, that even aibeffes were fome-
times prefent in thefe courts . «' Ut epifcopi, abbates, at-
que albatijpe, comitefque, unanimiter invicem fmt confen-
tientes legem ad judicium juftum terminandum," &c.
JBaluz. torn. i./. 366.

(31) " Quotiens bella non ineunt, non multum vena-
tibus ; plus per otium traniigunt, dediti fomno, ciboque.
Fortiflimus quifque ac bellicofiffimus nihil agens, delega-
ta domus et penatium et agrorum cura feminis fenibuf-
que, et infirmiffimo cuique ex familia, ipfi hebent : mira
diverfitate naturae, cum iidem homines fie ament inerti-
am, et oderint quietem." Tacit, de M. G. c. 15. This
propenfity to idlenefs and floth was owing to their limit-
ed ideas of property, and to the great liberty they en-
joyed : *' Socrates dicebat," fays a judicious writer,
** fororem libertatis efTe otium ; et argumentum hujus rei
dicebat, fortiffimos e(Te et libertatis fludiofiffimos Indos et

Perfas j

Se&. 2. in Germany and England. 24.1

he conceived of the drudgery of civil
affairs (32), made him often delegate to
an inferior perfon the diftribution of
juftice in his diftricT:. The fame fenti-
jnents Were experienced by the Saxon
nobility ; and the fervice which they
owed by their tenures, and the high
employments they fuftained, ' called them
often from the management of their
counties. The progrefs, too, of com-
merce, giving an intricacy to cafes, and
fwelling the civil code, added to the dif-
ficulty of their office, and made them
averfe to difcharge its duties. Sheriffs^
therefore, or deputies, were frequently
appointed to tranfad: their bufmefs (33) :

and

PetTas, qui utrique, fi fpe&es exterlorem fpeciem, /eg-
niflimi efTent : Phryges vero et Lydos ad opus faciendum
aptifiimos elfe, fed fervire." JElian. lib. 10. c. 14.

(32) LL. Long. lib. 2. tit. 30. c. z. ap. Lindenbr.
Bakz. torn. 2. p. 187.

(33) " yicecomes" faysDuCange, " vicarius comitis,
qui vices comitis exequatur, — " " The fcyre-gemot,"
fays Selden, (which was a court kept twice every year,
as the fherifPs turn is at this day), " was held by the

R Ijifliop

242 Of the judicial arrangements Part IV.

and though thefe were at firft under
fome fubordination to the earls, they
grew at length to be entirely independ-
ent of them. The connection of jurif-
didion and territory ceafmg to prevail
(34), and the civil being feparated from
the ecclefiaftical power, th,ey became the
fole and proper officers for the direction
of juftice in the counties.

The hundred, however, and county
courts, were not equal of themfelves
for the purpofes of jurifdic~tion and or-
der. It was neceflary that a court
fhould be erected, of fupreme authori-
ty, where the difputes of the great

biihop of the diocefs, and the ealdorman, (in fhires that
had ealdormen), and by the bilhops and Jberifs in
fuch as were committed iojheriff's" tit. hon. f* 520.

(34) The fherifFs were perhaps originally erected by
the earls; but the difunion of jurifdidion with land, and
the intereft of the people, which might be hurt by un-
ikilful or improper fherifFs, brought about a popular
election of thefe judges ; which, however, feems to have
been confirmed by the king. Du Canget vac. Comes.
, ojfic. <vic* ?• 6* Blackftwe, b. I , /. 329.

ftioujd

Sect. 2. in Germany and England. 243

fhould be decided (35), where the difa-
greeing fentiments of judges (36) fhould
be reconciled, and where protection (37)
Ihould be given to the , people againft
their fraud and injuftice.

The princes accordingly (38), or chief
nobility, in the German communities,
afiembled together to judge of fuch
matters. The Saxon nobles continued
this prerogative ; and the king (39), or,

in

(35) De cauiis vero magnatum, et potentiorum non
tognovit comes, nam ha: ad aulam regiam deferenda.1.
Spel. Glojf. <uoc. Comes.

(36) Capit. 3. tit, 77. ap. Lindenbr. p. 885.

(37) Baluz. torn* i. p. 198. 1222.

(38) Tacit. deM. G.c.n. " De minoribus rebus prin-
cipes confultant, de majoribus omnes." The lefler mat-
ters, to which our author refers, were the rights of in-
dividuals, and the distribution of juftice. The more im-
portant concerns, which the people decided in a body,
or by their reprefentatives, were tbofe which regarded the
community in general.

(39) Spel. GloJJ'. voc. Jujliciarius. Hence this court
was called the king's court. It was here that King Al-
fred, afllfted by his nobles, is fuppofed to have condemn-

£ a ed

244 Of the judicial arrangements Part IV.

in his abfence, the chief jujliciary^ (40),
watched over their deliberations. But
it was not on every trivial occafion that
this court interefted itfelf. In fmaller
concerns, juftice (41) was refufed du-

ed forty-four judges to be put to death for abufes in their
office. See Horn, Mirroir des Jujiices, c. 8. But this
author, I confefs, is not entirely to be credited. AfTer,
who lived in the fame age with Alfred, and wrote his
life, fays nothing to this purpofe : and feveral of the
names of the judges are evidently not Saxon. This court,
however, is doubtiefs alluded to in that paflage of the
laws of the Confefibr, where it is faid in relation to the
king, i " Debet JLidicium reftum in regno facere, et
juflitiam per concilium procerum regni fui tenere." Wil-
kins, p. 200. Four courts arofe from its ruins, and ma-
nage, at this day, the bufinefs it comprehended ; the
king's bench, the chancery, the common pleas, and the
exchequer. The houfe of Peers became alfo, on its abo-
lition, the fupreme court of appeal. Dalrymple on feud,
property, cb. 7. feft. i.

(40) This name, it may be alledged, is Norman ; but
the officer was known among the Saxons by the title of
^Totius Anglite Aldermannus. Dugdale, orig. jurid, c. 7.
Selden, tit. hon. p, 505.

(41) Leg. Polit. Eadgar, c. 2. LL, Cnut. 6. 16. 18.

ap. Wilkins.

ring

Sect. 2. in Germany and England. 245

ring three feffions of the hundred, and
claimed, without effect, at four courts
of the county, before there could lie an
appeal to it.

So gradually were thefe arrangements
eftablifhed, and fo naturally did the va-
rying circumftances in the fituation of
the Germans and Anglo-Saxons direct
thofe fucceffive improvements, which
the prefervation of order, and the ad-
vantage of fbciety, called them to adopt!
The admiflion of the people into the
courts of juftice, preferred, among the
former, that equality of ranks for which
they were remarkable ; and it helped to
overturn, among the latter, thofe envious
diftinctions which the feudal fyftem
tended to introduce, and prevented that
venality in judges, and thofe arbitrary
proceedings, which the growing attach-
ment to intereft, and the influence of
the crown, might otherwife have occa-
fioned.

24^ Of the judicial arrangements Part IV.

SECT. III.

The fame fubjefl continued.

BEFORE we leave this fubjed:, it may
be necefTary to take notice, that
fome of our antiquaries, and many of
our hiftorians, have afcribed to King
Alfred thofe maxims of police, and
thofe methods for the regulation of jii-
ftice which We have jufl now attempt-
ed to defcribe ; and which, trufting to
the ancient monuments of Gothic ftory,
we have ventured to trace in their pro-
grefs from the forefts of Germany.

The obfcurity of the fubjed, and the
want of curiofity, joined to the autho-
rity of a monkifh writer (i), and the

(i) Rex Alfredus, totius Anglian pagos et provincias,
in comiratus primus omnium conunutavk, comitatus in
centurias et hundredas, et in decennas et tithingas divifit.
fngulph, p. 870. ed» Francof. See alfo Malmejb. lib* 2.
fv.4-, • ,•

high

Se£t 3. in Germany and England. 247

high admiration of a monarch whom
his hiftorians have confidered as the
model of a perfed character (2), are
the caufes, undoubtedly, which have
fpread this opinion.

A propenfity likewife in mankind, to
confider the forms of policy as the con-
fequence of political wifdom, has con-
tributed its influence to the fame pur-
pofe. It is the wants, however, as
was obferved, and the neceflities of na-
tions, which give birth to laws, and to
civil eftabliihments. The politician,
who, attentive to thefe, endeavours to
relieve them, and to infure the emolu-
ment of his Hate, is miftaken for its
founder. To the defigns of Lycurgus,
and of Romulus, are afcribed the infti-

(2) " He feems indeed" (fays a great hiftorian of this
prince) " to be the complete model of that perfect cha-
racter, which, under the denomination of ajage or ivi/e
man, the philofophers have been fond of delineating, ra-
ther as a fiction of their imagination, than in hopes of
ever feeing it reduced to practice :—" Hume, vol. i.
?•&

fl 4 unions

24.8 Of the judicial arrangements Part IV.

tutions of Sparta, and of Rome. But
thofe liiuftrious flatefmen only a£ted a
more confiderable part, in unfolding
the modes of adminiilration which
were fitted for thefe. It is the memo-
rable faying of Solon (3), cc I have not
given to my country the wifeft laws, but
thofe which were moft fuited to its ge-
nius and manners. "

The diftrefles of his reign, and thfr
diflblute manners which were thence' oc-
cafioned, induced Alfred to attend more
particularly to the government of his
kingdom. He was fcarcely fixed on his
throne, when an invafion of the Danes
called him out to defend it. Many
battles were fought ; and though Alfred
was fometimes victorious, yet was he
forced at length to retire, with a few
nobles, to the ifle of Athelney. The
Danes mean- while carried every where
fkftrudion and ruin. Learning was

(3) Plutarch, vit. Sol, Dr. Fergufon on civil fociety,
part 3. fed, 2.

neglected 5

Se£t.3« in Germany and England. 249

negleded (4) ; the execution of juftice
was fufpended ; and the Englifh, un-
awed and unreftrained, and unable to
attend to tillage, and to other cccupa->
tions, gave themfelves up to diforder,
and fubfifted by plunder. They even
perfonated the Danes, and, landing fome-
times in one place, and fometimes in
another, committed fpoil and devaftation
on their country.

When the arts and the valour of Al-
fred had brought matters to greater
tranquillity, and he had refumed the
enfigns of royalty, he began to repair
the wafte of the Danes, and to confult

(4) " Quemadmodum" (fays K. Alfred, in the pre-
face to Gregory's paitoral) extianei fapiemiam et doftri-
nam hie in hac noftra terra quondam qujefierint ; nofque
jam (verfa vice) peregrinari oportet ad earn adipifcen-
dam, adeo funditus concidit apud ger.tein Anglicanam,
ut pauciffimi fuerint cis Humbrum qui vel preces fuas
communes, in fermone Anglico intelligere potueranc, vel
fcriptum aliquod e Latino in Anglicam transferre. Tam;
iane pauci fuerunt, ut ne unum quidem recordari poffim
' ex auitrali parte Thamefis, turn cum ego regnare occae*
peram." To fo low an ebb was learning reduced !

the

25° Of the judicial arrangements Part IV.

the future prefervation of his kingdom.
He encouraged learning by his example,
and invited many diftinguifhed foreign-
ers to take up their refidence in Eng-
land ; he compiled a body of laws ; he
accuftomed an undifciplined militia to
regularity and order ; he rebuilt the
churches, the fortreffes, and other pub-
lic ftructures, which the Danes had
demolifhed ; and ftrengthened and ad-
orned thofe cities which were no longer
fit for habitation, or defence. But the
arrangements, and execution, of jufticej
attracted his chief care.

Though the obfervations, however,
which were formerly made, are fufficient
to overthrow the opinion, that he was
the fole author of the eftablifhments of
counties and hundreds (5) ; yet his wif-

dom

(5) Many fa£b might (till be added to oppofe this opi-
nion. I ftiall here mention a very few with regard to
the divifion of counties. To judge by the fentiment of
Jttgulphus above cited, there could have been no earls
before the reign of Alfred, as there were no counties, till
that time, from which they might have been denomina-
ted.

Sed.3* ?« Germany and England. 251

dom and vigilance introduced an order
and difpatch, which had been unknowa
in thefe courts. He beftowed the great-
eft attention to have the nobility in-
ftru&ed in letters, and their country-
cuftoms : he was careful to ele£t fuffi-
cient magiftrates ; nor did his ability al-
low him to be piaffed by favour or pre-
judice : and he was active to difcover
and to punifh their neglect, or their
fraud.

But his care was not bounded by for-
mer eftablifhments. He feems to have
divided hundreds into tytbings ; and the

ted. We know, however, from Afferius, who was con-
temporary with this monarch, that Ofric was Earl of
Ham/hire, and Etkel<wolpb Earl of Barftire* under
Ethelbert; and that Ean~-wulfwas Ear! of Somerfetjhirc6
under his father Ethelwolph. Several earls, before the
time of Alfred, are alfo mentioned by Ethelwerd, a wri-
ter of the Saxon period. And even Ingalphus hath the
charter of King Ethelbald's foundation of Crowjand,
which is fubfcribed by the Comites of Leicefter and of
Lincoln. Bendes, it is faid in the laws of Ina, that if
^n earl allowed a thief to efcapes he forfeited his county.
Selden, tit. hon. p. 509* Wilkins, f. 20.

diforderly

Of the judicial derangements Part IV.

diforderly manners of the lower orders
of men, naturally fuggefted to him this
Improvement on the German inftitu-
tions. A ty thing^ vr free-borg^ confifted
of ten free-born men, with their fami-
lies, who, uniting into a company, were
pledges or furety for one another ; and
ihould any of their number offend a-
gainft the laws, they were bound to
produce him, or to give fatisfadtion for
his crime. Thirty-one days were al-
lowed to bring him to juftice (6) ; and
if he could not be found during that
period, the tythingman^ or borjholder^ with
two of his own free-berg, and with the
tythingman^ and two of the more confi-
derable pledges of each of the three
neighbouring free-borgs, was called to
purge himfelf, by oath, of the offence
and flight of the criminal. The borf-
holder (7), or chief pledge^ was the offi-
cer

(6) IX. Edw. c. 20. ap. Wilkins, p. 201. Spel. Glofl*.
voc. Friborga,

(7) LL. Ed<w. f. 32. ap. Wilkins, p. 203. " Praeerat"
(to ufe the words of Spelman) " novem fui fodalitii co-

mitibus

Se£h 3. in Germany and England. 253

cer who prefided over the bufmefs of the
tything. Every houfeholder was an-
fwerable for his own family, and (8)
even for a gueft, if he had ftaid above
two nights in his houfe. To refufe to
be inrolled in fome tything, or decennary,
was to incur the character of an out-
law, and no town daring to receive
fuch perfon, he was thrown into pri-
fon, or put to death as a robber, and
an enemy to fociety. No one could
change the place of his refidence, with-
out a legal warrant to that purpofe (9) :
and all the pledges, from twelve years
of age, were annually aflembled at a
court-leet, as it was called, or view of
frank-pledge ; and having fhown in what

mitibus (quos friborgos, congildones, contubernales, &c.
vocant) cogncvitque inter hos de damno, pratis, pafcuis,
meilibulique illato ; etiam de Hdbus inter vicinos." Glojf.
<voc. Decanus Frilorgl.

(8) LL. Ednv. f. 27. ap. Wilkins. " Duabus nodibus
hofpes, tertia nodle familiaris habendus eft."

(9) Larnbar.d of Borfliolders, and other lay officers,
p./. S,

-54 Qf the judicial arrangements PartlV.

frte-borg they were entered, they took
the oath of fealty to the king;

The inftitution likewife of irithings
owed perhaps its original to this mo-
narch. The trithing was conftituted by
the principal men of the different hun-
dreds it comprehended (10) ; who meet-
ing together, debated and determined
all matters which had mifcarried in the
hundred-courts^ or which had been found
too difficult to be decided there (n);
and the tritbingreve, or leidgreve, was
the officer who had chief authority in
this court. But this divifion was not

(10) LL. Edw. c. 34. ap. WilkittS) /. 204. Erant ct-
Jam et alia: potentates foper Wapentachia, quas vocabant
Trithingas, quod £rat tertia pars provincial. QuJ vero
fuper cas dominabantur, vocabantur Trithingerefas. Ad
hos deferebantur caufa;, qua? non poterant definiri in Wa-
pentachiis. Sicque, quod Angli vocabant Hundredum, ifti
IJ'aptntacbittm ; et quod Anglice vocabant in vel iv
hundred^ ilti vocabant Tritbingas. — Quod autem in tri-
:hinga dcfinin ndn potuit, ferebatur ad Scyram,

(i i) Du Cange, voc. Trithinga. LL. Cnut. c. 19.
Lombard of Borilioldcr?. p. 8. Spel. vit. Alfr. p. 74.

generally

Se£t. 3. in Germany and England. 255

generally extended over the kingdom
(12) ; and where it did prevail (13), it
does not appear to have fubfifted long.

Thefe, I am apt to think, were the
only innovations which the wifdom of
Alfred thought necefiary (14). And with
regard to counties and hundreds^ he only

^ 2) The county of Kent was divided in this manner.
The rapes too in Suffex feem to anfwer this divifion ; and
perhaps the ridings alfo of Yorkjbirc. Spel.

(13) " Itfeemeth," (fays the fame antiquary, p. 53),
" that our courfe now ufed for taking a jury out of many
hundreds in the county, for trial of a caufe arifing in
one hundred, took beginning from the trial in the tri-
thing ; and that thereupon the trithinig court grew out
ofufe."

(14) After all, though I doubt not but Alfred introdu-
ced thefe divifions into England ; yet I fufpecl, that he
copied them from a German original. The Trttbingttv'e,
for example, who governed in the tritbing, is the fame
officer, in the opinion ofSpelman, with the Salic Tungi-
mus : and it is certain, that tjthings prevailed in many
Gothic nations. - «' Decani'' (fays Muraforz, in his
tenth diflertation concerning the antiquities of Italy) " per
decanias, five decem familiis, jus dicebant: — "torn. \.

But an impenetrable obfcurity covers^hefefubjecls.

fubjedled

Qf the judicial arrangements Part IV.

fubje&ed them to a form of greater me-
thod and rule. His fuccefs was equal
to the pains he beftowed for the pre-
fervation of order, and the regular dif-
tribution of juftice. Had a traveller
loft a bag of money on the highway,
h* was fure to find it : and though
golden bracelets, fays Brompton (15),
were hung up at the parting of feveral
roads, yet no man durft prefume to feize
them.

SECT. IV.

Of the forms of procedure.

TH E methods of trial which were
in ufe among the Germans, -are
concealed in darknefs, and in time.

(15) Thefe circumftances are, no doubt, the exaggera-
tions of hiftorians ; but they ferve at leaft to {how, that
juftice was adminiflered with the greateft exaftnefs.

Thofe

Se6t.4» in Germany and England. 257

Thofe of the Anglo-Saxons are not more
certain : and Selden (i), the moft learn-
ed of our antiquaries, has not fcrupled
to affirm, that he was no where able to
difcover them. Full of refpect for fo
great a name, and fenfible of the obfeu<-
rity of this fubjedt, I {hall throw toge-
ther'my thoughts on it with doubt and
hefitation.

Among the Germans, an hundred com-
panions, as they were called, were chofen
to affift the magiftrates in the diftribu-
tiori of juftice. It muft riot, however,
be imagined, that thefe companions could
be fo well inftruded in their country-
cuftoms, as to judge in relation to them.
Occupied in the practice of arms, and
fele&ed from the body of the people (2),

they

(1) Prxfat. in Auth. decem. p. 43. tit. hon. p» 521.

(2) STtf«V. de M.G.c. 12. " Centeni fingulis ex plebe
comites, confilium fimul et aii&oritas adfunt.'* The
£nglifh hiftorians and antiquaries have confounded the
companions mentioned in this paflage, with thofe who had
attached themfelves to particular warriors. But no two
orders of men could be more diftinft. See factf. de M. 0.

S f. i.

2j8 Of the judicial arrangements Part IV.

they were judges of faff, and not of law.
The dernocratical fpirit of the Germans-
would not truft the great or more illu-
ftrious with the power of an arbitrary
decifion in matters of difpute, or of life.
Every cafe was examined by the fxundred
companions ; they pronounced their <ue r-
diEl ; and the judges, princes,, or earls*
determined what was law. They were
fworn, like other judges, to the perform-
ance of their duty, in conformity to the
practice of the times ; and in this efta-
blifhment do we find the origin of a
jury.

But to judge of evidence with preci-
fion and candour, is at all times difficult.
In rude ages it is moft fo : hence thofe

t. 13. The former were judges ; they were chofen fora
certain purpofe ; and their number was definite. The
latter had no connexion with juftice, b«t as citizens ',
they followed their minds in the attachments they form-
ed ; and their number was not limited. The wifdom of
the former was refpected, and the public was more imme-
diately interefted in their choice : the military qualities
of the latter procured them elleem, and individuals were
more immediately concerned in them.

judges.

Seel. 4. in Germany and England. 259

judges amounted to an hundred. Though,
perhaps, as the Germans lived difperfed,
and diftant from each other ; as fome
might be indifpofed by ficknefs, or ta-
ken up with other affairs ; and as many
might have entered into the fervice of
nations which were then at war ; it was
neceflary to elect or fummon an hundred,
that, at leaft, a competent number
fhould aflemble for the purpofes of ju-
ftice. In like manner, in pofterior ages,
the fheriff ordered twenty-/ mr jurors to
be called, though a fmaller number was
fufficient (3) : and do not juries in Scot-
land confift, at this day, of a greater
number than in England ?

When the Germans had left their
woods, and had begun to refide in
towns; when intelligence, with regard
to the inhabitants of diftridts and coun-
ties, was more certain ; and when great-
er knowledge, and a higher degree of

(3) Smith's commonwealth of England, b. 2. e. iS,

S 3 culti-

26o Of the judicial arrangements Part IV*

cultivation, had rendered the bulk of men
more capable to judge in cafes of intri-
cacy, the number of jurors was dimi-
nifhed. In the Anglo-Saxon period ac-
cordingly twelve only were eledted (4) ;
and thefe* together with the judge, or
prefiding officer of the diftrid, being
fworn to regard juftice (5), and the

voice

(4) The jurors were annually elected in Germany, and
ferved in that capacity for the year. The advancement
of commerce and venality difcovered the inconveniency
of this method among the Saxons; and their number be-
ing reduced, as we obferved, to twelve, they were cho-
fen as occafion directed, from the neighbourhood of the
delinquent.

(5) LL. Ethelr. c. 4. c< Habeantur placita in fmgu-
lis wapentachiis, ut exeant feniores xn thayni, et prx-
pofitus cum eis, et jurent fuper fanftuarium, quod eis da-
bitur in manus, quod neminem innocentem velint accu-
fare, vel noxium concelare."

I know that Dr. Brady in particular, (See his ffift.
/. 76.), and Hicks, (Di/ert. Epijl. p. 34.) will not al-
low that the thani here mentioned were jurors ; but con-
tend that they werey'Wgr.r, or Ja-ivyers. Not to mention,
however, that Hicks is not confident with himfelf, ha-
ving advanced an oppofite opinion in a former part of his
Diflertation, I would obferve, that my Lord Coke, and Sir

Hary

Sed, 4. in Germany and England. 26 1

voice of reafon or confcience, all caufes
were fubmitted to them.

Before the orders of men were very

nicely

Hary Spelman, who were doubtlefs more intelligent in
antiquity and laws, were of a different opinion.

Hicks, it may be farther remarked, in quoting another
law which eftablilhes the practice of juries among the Sax-
oas, has alfo endeavoured to take away its force by mif-
tranflating it. See Senat. confult. de Mont. Wai. c. 3.
He likewife fuppofes the xn labmen mentioned there to be
duodeni jure confulti. But Bifhop Nicolfon (Prafat. ad
LL. Anglo Sax. p. 10.) and Spelman (Glojf. /. 328.)
have rendered thefe words more properly by legates homi^
nesj which is the proper expreflion for a jury, who, to
this day, are proclaimed by the crier to be xn good and
lawful men.

The fame author has been equally inconflderate or de-
figning with regard to another Saxon law, which gives
teftimony to the fame purpofe. But I refer the reader to
the before-named Bifhop, who has examined his reafon-
ings on this fubjeft with equal learning and judgment.

The general idea which Brady and Hicks, with their
followers, are fond to inculcate, to wit, that the different
parts of our conftitution are to be traced from the Nor-
mans, has led them into the greateft abfurdities. They
forget, that from the eftablifhment of juries among the
Normans, a very ftrong argument might be drawn, that
they prevailed among the Saxons. They were known,
$3 we

262 Of the judicial arrangements Part IV.

nicely diftinguifhed, the jurors were eleft-
ed from the fame rank. When, how-
ever, a regular fubordination of orders
was eftablifhed, and when the know-
ledge of property had infpired the ne-
ceffitous with envy, and the rich with
contempt (6), every man was tried by
his equals. The fame fpirit of liberty,
which gave rife to this regulation, at-
tended its progrefs. Nor could mo-
narchs aflume a more arbitrary method

we are certain, to the Danes and other Gothic tribes.
(See Sficfnbook de jure Sueonum et Gatborum <vetufto, c. 4.)
And were not all thofe nations defcended of the fame ori-
ginal, and governed by the fame cuftoms ? Even the an-
cient Britains had the dwdecinfvirale judicium. See IL.

(f ) No one, fays a law of the Longobards, «• fine
certa et convida culpa fuum beneficium perdat, nill
fecundum confuetudinem anteceflbrum noftrorum, et ju-
diciam parium fuorum." Lindenlr. p. 679. This law,
by the way, proves the antiquity of juries. " En legis
noftr.T ideam," fays Spebnan in citing it, " quae habe-
tur in Mag. Chart. ^.30 Nullus liber homo rapiatur,
*vel imprifonetur, aut dijffefietur de Ultra tenemento fuo,-—
nlfi per legate judicium parium fuorum, i>el per legem

Gbf. f. M9*

Of

Sect. 4. In Germany and England, 263

of proceeding. " I will not" (faid the
Earl of Cornwall (7) to his fovereign)
•" render up my caftles, nor depart the
kingdom, but by judgement of my
peers." Of this inftitution, fo wifely
calculated for the prefervation of liber-
ty, all our hiftorians have pronounced
the eulogium.

It was judged in general concerning
evidence, both in Germany and Eng-
land, by the teftimony of witneffes
(8) : for the art of writing being altoge-
ther unknown to the Germans (9), and
little ufed by the Saxons, no written,
proofs could be adduced among the for-
mer, and they were feldom appealed to
among the latter. When no witnefles
could be found, the party accufed de-
fended himfelf by his own oath, and by

(7) M Paris, an. 1227.

(8) Baluz. torn. 2. p. 330. 339. 348. 1187.

(9) Tacit. dcM. G. r. 19. Litteraram fecreta viri-pa-
titer ac feminas ignorant.

S 4 the

264 Of the judicial arrangements Part IV.

the oaths of a certain number of com-*
purgators (10), who, without any know-
ledge of the caufe, fwore to his veracity.
This practice took its rife in Germany at
a time when individuals had entered in-<
to. particular confederacies ; and when
their dealings being little extended, and
their characters little known, no infor-,
mation was poflefled concerning them
beyond the circle of their companions ;
and it prevailed in England when thofe
connections were broken, and when re-
Uiners. were not kept together by conti-
nual alarm and habitual attendance on
their chiefs. In the courfe of ages, the

(10) Du Cange, *voc. J'uramentum, Spelman *voe. LA-
da, LL. Hlotb. et Eaar. e. 5. ap. Wilkins. There is
yet a remain of this cuftom in what is called the wager
of law, \yhich ta{ces place in adlions of debt without fpe-
cialty. The defendant, when the proof is not clear on
the plaintiff's fide, is admitted to wage bis law ; that is,
to give his oath, that he owes nothing to the plaintiff-,
and to bring as many perfons of good character as the
court fhall aflign, to make oath that he fivears juftly.
, 65.

Seel:. 4. in Germany and England. 265

caufes of cuftoms are forgot, and yet
thofe cuftoms continue.

But when cafes were extremely doubt-
ful and intricate, or of much import-
ance, the jurors or judges, confidering
the little refpecl: which in thofe times was
paid to an oath, trufted not to the tefti-
mony of parties, of compurgators, or
of witnefles. They had recourfe to
other modes of trial, which were then
fancied to be infallible, and which arofe
from the licentious notions entertained
of the operations and providence of the
Deity ; fubje&s on which mankind have
ever vainly employed their curiofity and
refearch.

Of thefe the moft confiderable was
the trial by combat ( 1 1 ) ; and to a peo-
ple

(l i) This trial was common to all the Celtic or Gothic
tribes. Paterculus has obferved concerning the Germans,
" At illi — fimulantes fa&as litium feries, et nunc provo-
cantes alter alterum injuria, nunc agentes gratias, £>uod eas
Romana juftitiafniret, feritafque fua, now it at <e //;< jgnittt
difaplin<e, mitefcer-ety et felita armis difcerni jure termi-

narentur, "lib. 2. c. 1 18. TJ the f^nepurpofe is the

fpllowing paflage from Nicolaus Damafcenus : " Umbrici,

quum

$66 Of the judicial arrangements Part IV.

pie who were inured to arms, and who
imagined, that innocence was protect-
ed by the Deity, no inftitution appeared
more natural, or carried with it a high-
er conviction. The victory of a party
they confidered as an award of the Di-
vinity, who, concerning himfelf in hu-
man affairs, decided for the juft. But
as individuals (12) had fubmitted their
differences to the laws of their country,
it was not allowed to them to chufe this
trial of their own accord. The judge
(13) or magiflrate examined the merits

quum controverfias inter fe habent, pugnant armati, ac fi
bello congrediendum efTet ; et videntur juftiorem habuiffe
caufam, qui adverfarium interemerint." Grono'v. antiq*
Gr<sc. torn. 6. p. 3850. The reader may alfo confult
Li<vy> lib. 28. c. 21. The Germans even judged in this
manner of their national quarrels : " Ejus gentis, cum
qua bellum eft, captivum quoquo modo interceptum,
cum elefto popularium fuorum, patriis quemque armis
committunt. Vidoria hujus vel illius, pro prasjudicioac-
cipitur." Tacit, de M. G. c. \ o.

(12) Du Cange, voc. Duellum. LL, Hen. I. c. 59

(13) Du Cange, ibid.

of

Seel:. 4. in Germany and England. 267

of the caufe, and the propriety of deci-
ding it in this form. He inquired if
the parties were of proper age or con-
dition (14) ; he received the fledges or
fecurity for their appearance, and fub-
miffian to juflice ; he determined the
day of the combat (15), and fpecified
the place and the arms. The parties
mean-while fufpended their animofity
and infult ; and when brought to the
field, they were fworn, that they pof-
fefled no herb, or fpell, or incantation
(16) ; and it was obferved if they had
armed themfelves with the legal wea-
pons. The charge (17) was then given ;

and

(14) Thofe who were minors, or after fixty, and thofe
who were blind, lame, or otherwife incapable of fighting,
were permitted to have champions. See the Gloffaries.

(15) Spel. GlofT. voc. Campus.

(16) Spel. ibid.

(17) It is not incurious to remark, that a judicial
combat was propofed fo late as the reign of Queen Elifa-
bjeth. Simon Low and John Kime profecuted Thomas
Paramore for a manor and lands in the county of
Kent. Paramore offered to defend his right by duel;
and the champions were chofen on both fides. The
flory may be feen at large in Speed, or in Spelman's

t we. Campui. A trial of the fame kind' was

alfo

$68 Of the judicial arrangements Part IV.

and their fuccefs or mifcarriage deter-
mined their innocence or guilt.

The trial of the ordeal, which pre-
vailed alfo in Germany and England
(18), was the next in dignity. It con-
fifted of two branches ; the fire-ordeal,
by which the great and more noble
were tried ; and the water-ordeal, which
was employed againft peafants, and men
of low extraction. By the firft, the cri-
minal was to carry a red-hot iron, in
his naked hand, for a few fteps (19), or

alfo propofed in the time of Charles I. ; and the parties
were Donald Lord Rea, and Mr. David Ramfey. See
a very learned and ingenious book intitled, Observations
on the more ancient Jlatutes ; id. Edit. p. 265. It may
be remarked, however, that both thefe trials were fuper-
feded by the royal authority. The curious reader may fee
the nature and ceremony of duels in Jlra8on> lib. 3. trafl.
2. e. 20. 21.

(18) Baluz. torn. 2. p. o^g.&V. Senat. conf. de Mont.
Wall. c. 2. LL. Edvv. et Gunth. c. 9. LL. Ethelft.
c. 7. 14. 21. 23. ^Ethelr. c. i. Cnut. c. 17. part 2.
c. 20. 27. 29. 32. 54. LL. Ed\v. Conf. c. 9. ap4 Wil-
kins.

(19) If the coulter or bar of iron was of one pound
weight, the trial was called the Jingle ordeal ; if of three
pound weight, the triple ordeal-, and thefe methods were
ufed in proportion to the fuppofed guilt of the criminal.
Du Cange, woe, Lada,

to

Sect. 4» in Germany and England. 269

to walk blind-fold (20) and bare-foot
over a certain number of red-hot plough-
fhares, which were placed a yard diftant
from each other : and he was pronoun-
ced to be innocent, if he efcaped un-
hurt ; but guilty, if he bore any mark
or impreffion. By the laft, the party
was fometimes thrown into cold water
(21) : in which cafe, if he fwam, he
was condemned; and if he funk, he
was acquitted. At other times, his
hand and arm were immerfed, to a cer-
tain depth, into boiling water (22) : and

mould

(20) O. Worm. Mon. Dan. lib. i. c. n. Le Gendre,
p. 33. Seld. analeft. Anglo-Eritan. c. 8. It was in this
manner, we are told, that Emma, the mother of Ed-
ward the Confeffor, was tried for an illicit commerce
with the Biihop of Winchefter. Spel, Glo/. p. 324.

(21) In aquam frigidam inculpatus, manibus pedibuf-
que ligatus, ita ut dextra manus finiilro pedi, finiftra ve-
ro dexcro pedi adligaretur, mittebatur : fi fupernataret,
reus judicabatur; fi fubrnergeretur, innocens habebatur.
Stru-v. bift.jur. criminal, feel. 9.

(22) Pr&fat. Epifc. Derren. ad LL. Anglo-Sax, p. ,\ 3.
Spsl. woe. Judidum Dei. Selden's table-talk, article^

Trial.

27° Of the judicial arrangements Part IV.
fliould they receive any wound, his guilt
was prefumed ; if not, his innocence.

It is not neceflary to mention the
other modes of trial. They were of a fi-
milar kind, and derived their original

from

Trial. Verftegan, p. 66. It is remarkable, that among-
the Jews, women fufpefted of aduhery were tried by the
•water ofjealoujy. See Numbers, c. 5. <v. n. and the
commentary of Grotius* And feveral Roman hiftorians
mention the cafe of Tuccia, the veftal virgin ; who, be-
ing accufed of incontinence, cleared herfelf, by carrying
wafer in ajieve out of the Tiber to the Temple. Sophocles
alludes, in his Antigone, to the trial by hot irox-. And on
this head, we have the following very curious paflage in
Strabo : *' Sub monte Soracle urbs eft Feronia, cogno-
minis indigcnae cuidam deae, quam vicini ftudiofe venc-
xantur : atque eft ibi lucus Feroniae, in quo facrificium
perpetrator mirabile. correpii enim ejus numinis afflatu,
homines nudis pedibus prunarum ardentium Irruem illzft
perambulant. et quotannis eo turba hominum cum folennis-
conventuj, turn fpedaculi ejus caufa confluit." lib. j./.
346. The fame cuftoms appear alfo to have prevailed in
feveral places of the Eaft and Weft Indies. See Purchaf,.
Kempfer's hijl. of Japan, vol. I. p. 236. and Churchill's
tollefi. of voyages, vol. z. The Germans even employed
the trial by water, to prove the legitimacy of their
children :

•' Et quos nafcentcs explorat gurgite Rhenus.'*

Claud, in Rufa,. lib. 2.
If

Se£t. 4. in Germany and England. 271

from the fame principle. Thefe exam-
ples are fufficient ; and the beft lefTon
they give us is, to value thofe plans of
juftice to which we are accuftomed. It
may be obferved, however, that the fame
enlarged reafon which has long fince
abolifhed every appeal to the Divinity,
has taught us to prize the inftitution of
juries as the moft precious gem of our
conftitution.

If the reader would inform himielf of the exorcifms, con-
jurations, offices, and the different ceremonies which
were ufed in the Gothic ordeals, he may confult Spelmart,
*voc. Qrdalium* JSalux, torn. 2. or Murat, antiq. It ad.
dijjert. 38.

A N

HISTORICAL DISSERTATION

Concerning the ANTIQUITY of the

ENGLISH CONSTITUTION*

PART V.

Of the great council, or parliament,
in Germany and England.

SECTION L

Of the Commons in Germany.

WHEN we confider the tumult
and diforder with which man-
ners are frequently disfigured in rudef
ages, and compare them with the
peace and fecurity which prevail in

cultivated

Se£h I • Of the great council, &c. 273

cultivated times, we are apt to con-
clude, that in fuch periods the intereft
and purpofes of fociety are little under-
ftood or valued. It is, however, among
nations whom we difgrace with the ap-
pellation of barbarous i that the duties of
the citizen are moft generally known,
and that his character is moft refpected.
The novelty, and other qualities of ob-
jects, which wrought their effects with
a powerful energy in the mind of the
German, his inexperience in certain fi^
tuations, and the heat and ardour with
which he profecuted and followed his
refentments and his feelings, induced
him, on many occafions, to fpill the
blood of his countrymen, and to in-
fringe the order of his tribe. But he
was ignorant of all the arts of life, arid
of thofe various employments which fi-
gure in the ages of refinement, and
which, bufying the minds of indivi-
duals, dull their fenfations for a public
intereft. He fought not, in the practice
of fraud and chicane, the accumulation
of wealth, or the means of pleafure and
T enjoy-

274 Of the great council in Part V.

enjoyment. For he had formed no
idea of a private property ; and the
territory which his valour had pur-
chafed from an enemy, accrued to
the ftate. His mind was uncon-
fcious of the meannefs which the di-
vifion of labour, arid the variety of piir-
fuits, occafion ; and of all thofe felfim
regards, which, following the progrefs
of manners, rife up to the corruption
of mankind. Maintained by his nation,
he ftrengthened his natural magnanimi-
ty by an attention to fo great an object.
And as he was intitled to a larger al-
lotment of territory (i), in proportion
to his merits, he arnbitioufly contend-
ed to promote the glory and profperity
of his tribe. Inftigated~ by the moft ge-
nerous reflections, he performed all the
offices which he owed to his country,
with a keennefs of paffion which is never
experienced by the polifhed citizen.

He courted and procured an admit-
fion into the general aflembly of his na-

(i) Part i. fefl. 3. & 4.

tion t

Sect, i. Germany and England.

tion : and following the fentiments of
his mind, unawed by a flavifh fear or
dejection, he painted them with that
force, and glowing eloquence, which
true paflion always infpires ; and com-
municated to his fellow-citizens thofe
various movements with which his bo-
fom was agitated. His tribe, often
ftruck with the fchemes he propofed,
lifted him up to put them in execution.
The low concerns (2) of a party yielded,
in thofe times, to the public intereft ;
and a grateful nation acknowledged the
value of its members.

But though every man who had been
adorned with a fhield, and a framea^
and was intitled to a proportion of ter-
ritory, had a claim to attend the farlia-
ment or great council of his nation ;
yet was it impoffible that the more po-
pulous tribes could, on fuch occaiions,
collect their individuals. It is natural,
therefore, to imagine, that in fmaller
communities the people affembled in a

(2) Tacit, de M. G. c. ii. 13. and part i. feft. 4.

T 2 coihftiw

276 Of the great council in Part V.

colleftive body ; but that in thofe which
were richer, and more populous, they
appeared by a reprefentative.

At a time when the fatigue of too
numerous a family, when luxury, and
the love of pleafure, obftruded not the
utility of the fexes (3), the greateft in-

creafe

(3) Tacit, de Mm G. c. 20. " Quanto plus propinquo-
~?um, quo major affinium numerus, tanto gratiofior fene-
"ftus, nee ulla orbitatis pretia." I ftiall here add a few
fads with regard to population in feveral Celtic commu-
nities : " Magnam olim fuifle Arvernorum potentiam inde
fciri poteft, quod multa adverfus Romanos bella gefle-
runt, aliquando cc millium exercitu, atque etiam duplo
ejus: nam duce Vercingetorige cccc millibus adverfus
D. Csefarern decertaverunt : ante cc millibus contra Ma-
ximum yEmilianum, et Domitium item ^Enobarbum,"
Strabo, lib. 4. " Helvetios aiunt," fays the fame au-
thor, in the fame book, " quamquam eflent auri divites,
tamen latrociniis fe dedifie, cum viderent Cimbrorum
opes : cumque eflent in tres gentes divifi, duas earum in
expeditionibus bellicis periifle. Quanta tamen ex reliquiis
enata fuerit multitude, bellum Helvetiorum contra D.
Caefarem geftum docuit, in quo hominum cccc millia
deleta funt : reliquos ad vin millia Caefar fuperefle paf-
fus eft, ne finitimis Germanis vacuam regionem relinque-
ret." It may be fufficient to fubjoin another paflagc
from the fame writer : " Inter Belgas praeftare aiunt
Beltovacos, ac fecundum hos Sueffiones. Quanta homi-
num

Se£t i. Germany and England. 277

creafe was unavoidable to the numbers
of mankind. There were (4) four hun-
dred nations in Gaul ; the fmalleft con-
taining 50,000, the largeft 200,000 men ;
and Germany was populous in propor-
tion. The nation, for example, of the
Suevi, confifted of an hundred diftricts ;
and each diftricl: (5) comprehended two
thoufand warriors. Shall we imagine,
then, that the whole body of this peo-
ple aflifted at the deliberations of its
council ?

As the Germans built no cities,
but lived detached and feparate from
each other ; as the one half of a com-

num copia apud eos fuerit, hinc colligi poteft, quod olim
trecenta millia hominum arma ferre valentium apud Bel-
gas funt cenfa."

(4) " Galliam mults gentes, non aeque tamen popu-
lofae, incolunt. Maxima? inter has cc virorum millia,
minimae quinquaginta millia continent." Diod. Sic. lib. 5,
See alfo Plutarch, Appian, and C<?far, lib. \ , c. 29. lib. 2.
f* 4- 33-

(5) Part i. fefl. 3.

T 3 munity

q 78 Of the great council in Part V.

munity was employed againft an enemy,
and the other in cultivating the ground
(6) ; it was even difficult for fmall com-
munities to call together their members
(7) ; but in large communities it muft
have been altogether impracticable.
When Caefar was erecting his bridge o-
ver the Rhine (8), the Suevi, it is faid,

were

(6) Part i. fed. 3.

(?) It g^es me pleafure that I am able to confirm this
opinion by the teftimouy of fo great a man as Grotius.
This author imagines, that it is unnatural to fancy that
every individual in the German ftates was prefent at their
councils. " Id cnim" (to ufe his own words) " in gente
magna, qualis praefertim Batavorum, in qua nationes
feptem Plinius (lib. 4.) numeral, Batavos proprie ita
diclos, Caninefates, Frifios minores, Frifiabones, Cau-
chos minores, Tufios, Marfacios, fieri omnino non
poterat. Sed omnes" (he alludes to this expreflion of
Tacitus, de minoribus rebus principes confultant, de ma-
joribus tonnes) " dicuntur ipfum concilium, quo ex omni
regione omnique ordine idonei homines mittebantur."
Lib. de Antiq. Reip. Bat aw. c. 2. So when Civilis decla-
red war againft the Romans, " convocavit primores gen-
tis et promptiffimos vulgi." Tacit, bift* lib. 4.

(8) Cte/ar, Se in fines Ubiorum recepit, atque iis

auxiliurn fuum pollicitus, fi ab Suevis premerentur, hasc

ab

Sect. I. Germany and England. 279

were alarmed, and fummoning a great
council, they difpatched orders through
the community, directing the people to
forfake their habitations, and conceal-
ing their children, their wives, and ef-
fects, in the woods, to repair to a ftipu-
lated rendezvous, and expect the Ro-
mans. If the individuals of this ftate
had met in a collective body, it had been
unneceffary to iflue fuch orders.

Nor were the Gauls or Germans ig-
norant of a reprefentation in other cafes.
When threatened by any general cala-
mity, they formed great councils of
their ftates to confult for their common
prefervation, and in thefe each commu-
nity (9) appeared by its deputies. King-
doms

ab iis cognovit : Suevos pofteaquam per exploratores
pontem fieri com peri/lent, more fuo, concilia habit 'o, nun-
cios In offines partes dimifejje^ uti de oppidis demigrarenty
liberoSy uxorts, Juaque omnia, in J$lcva3 deponerent ; atque
omnes, qui arma ferre poffent, unum in locum coiwenirent ;
de bell. Gall. lib. 4. c. 19.

(9) Cafar^ lib. i. c. 30. lib, 6. c. 3. lib. 7. c. 12. 75.

The Hates of Gaul, for example, held by their reprefen-

T 4 tatives

2 80 Of the great council In Part V.

doms were reprefented by their fove^
reigns, and free ftates by chieftains
whom the people had eledted for that
purpofe. Another mode of reprefenta-
tion was likewife known very generally
over Germany. " Vetujtiffimos fe no-*
bilijfimofque" fays the Roman hifto-
rian (10), " Suevorum Semnones me-
nor ant. Fides antiquitatis religione jir-
matur. Stato tempore in ft ham aiign-*
riis patrum et prifca formidine facram,
omnes ejufdem fanguinis populi lega-

tatives a great council or aflembly in the reign of Vefpa-
fian. " Refipifeere paulatim civitates, fafque et feeders
refpicere, principibus Remis : qui per Gallias edixere,
Ut mijjls legatis in commune confultarettt, libertas an

pax placeret. Igitur v^nientis exercitus fama, ct

fuopte ingenio ad mitiora inclinantes Galliarum ciiiita^

tts, in Remos convener -e. Taedio futurorum prasfen-

tia placuere. Scribuntur ad Treveros epiftola;, nomine
Galliarum, ut abftinerent armis, impetrabili venia, ct
paratis deprecatoribus fi pceniteret." Tacit, hift. lib. 4,
e. 67. 68. 69. The Anglo-Saxons, it may be obferved
in this place, had aflemblies during the heptarchy of the
feven kingdoms, and fo could be no Grangers to the idea
of a reprefentation.

(10) Tacit, de M. G. c. 39,

tionibus

Se&. 2. Germany and England. $81

tionibus coeunt, ctfoque publice homine ce-
lebrant barbari ritus horrenda primordial
A reprefentation which was ufod in the
councils and fuperftitions of nations,
could not be unknown in the councils
of a community.

SECT. II.

Of the Commons in England.

IF the commons were fo confiderabl^
in Germany, they muft alfo have
conftituted a part of the Anglo-Saxon
parliament. But many authors decry
the antiquity of our conftitution, and
deduce from Norman monarchs the ex-
iftence of our liberty. Following the
tenor of the fentiments (i) into which

I

(i) I may perhaps have occafion, if thefe papers are
found to have any value, to exhibit, in another work, a

connected

282 Of the great council in Part V.

I have been led, I fhall deliver a few
thoughts on this fubjecT:.

The Germans, it is natural to think,
brought along with them into England
the fame fpirit and manners by which
they had been directed in their own
country. They renounced not all at
once the way of thinking to which they
had been accuftomed; the character of
the citizen was ftill refpe&ed, and the
power of the commons was flill confi-
derable. Would the freedom which the
people had enjoyed in Germany be ex-
changed for fervitude, and bands of
independent heroes fmk into flaves ?
Did they follow their leaders into an-
other country ; did they fight and con-
quer ; and were chains and fubmiffion
the reward of their valour and fervice ?
Haughty and free conquerors were not
to be ufed in this manner. Such a

connefted view of feveral direft arguments, which prove
a reprefentation of the commons before the 49th of
Henry III. To enter upon thefe at prefent, would lead
me beyond the defign of this eflay*

5 treatment

Se£t. 2. Germany and England: 283

treatment might fuit the condition of
the vanquished ; but could it ever be ap-
plied to men who had been born free,
who had experienced liberty, and who
had joined to their natural independence
the fiercenefs of victory ?

It is more confiftent with hiftory and
reafon to conclude, that they improved
and fecured their condition. They re-
ceived an increafe of confideration and
power by \hzjlefs and territory they had
acquired. The fervice they performed
was honourable ; and their influence
eonftituting the grandeur and authori-
ty of the nobility with whom they were
connected, their favour on that account
was courted. Were they at any time
treated with feverity, or did they fancy
that the expence and fatigues of war
were but ill repaid by the lands they pof-
fefled (2), they returned them to their
lords, and pairing into the train of more

(2) BruJfeL liv. 2. cb. 27. I fpeak of times before
the perpetuity of the feud had been fully eftabliihed.

liberal

284 Of the gre-at council in Part V.

liberal mailers, they renounced the ob-
ligations they owed to them.

But a great part of the people in the
Saxon period had feized on lands, which,
folding of no luperior, were confidered
as their property; and many of thofe,
who, following the fortunes of leaders,
had been prefented with a feudal grant,
poffefTed themfelves likewife of territo-
ries which were free and allodial. Inde-
pendent, therefore, from their riches,
and the ftate of fociety, the people for-
got not the privileges which they had
enjoyed in Germany.

Guided, however, by ideas of the
feudal law, the fpirit of which they
may not perhaps have underflood, ma-
ny authors have thought, that from the
obligation of the king's vaffals to attend
his court, the origin of parliaments is
derived. They confound the court of
the king with that of the nation; and
conjecture, that when the wants and
neceffides of the great barons had taught
them to difmember their fiefs, and when
cities had grown into eftirnation from

the

Se£t. 2. Germany and England. 285

the progrefs of commerce, the knights of
the JJjires, and the citizens or burgeffes9
made their appearance in parliament;
-and thefe alterations they afcribe to the
Norman times.

But parliaments were modelled upon
a wider foundation. They prevailed ia
Germany ; and it is only by an atten-
tion to the forms they aflumed there,
that we muft judge of thofe eftablifh-
ments. They prevailed alfo in Englan
before the great barons had parcelled
out their poffeflions, and before com-
merce had flourifhed in towns, or wealth
had become the chief object of value.
Men talk of the oppreflion of the peo-
ple, and of the poverty of the boroughs :
but the people were rather flattered than
opprefled. And allowing that the bo-
roughs wanted wealth (3) ; yet they

were

(3) This, however, can never be allowed. " We
know from Bede," %s a candid and manly inveftigator
into the antiquities of our government, " that there were
in England long before his time, twenty-eight famous
cities, bdides innumerable cafties, and walled towns of

note ;

286 Of the great council in Part V.

were not poor from the feverity of go-
vernment, but becaufe they defpifed (4),
or were ignorant of the conveniencies of

life:

note ; many of which, though now extremely decayed,
or quite ruined, were then very confiderable ; the greateft
and richeft part of the nation living in thofe times for the
moft part in cities, or great towns, for their greater bene-
fit or fecurity ; and the greater part of the lands of Eng-
land in the Saxon times, and long after, lay uncultivated
and over run with forefts and bogs ; fo that the inhabi- .
tants of thofe cities and boroughs being then fo confider-
abie for eftates in lands, as well as other riches, could
not be excluded from having places both in the Britijb
or Saxon great councils^ What man of fenfe can believe,
that the ancient and potent cities of London, Tork, Can-
terbury, Lincoln^ &c. mould ever be excluded from ha-
ving any hand in the great confultation about giving mo-
ney, and making laws, and for the public defence of the
kingdom, in the Saxon times, any more than they are
now ? And therefore we find, that in all the kingdoms of
the German or Gotbick original, the chief cities and towns
have (till fent deputies to the diets or afTemblies of eftates."
Billirthvca Politita ,p. 270. Seealfo^. 272.

(4) " II y a deux fortes" (fays Montefquteu] «' de
peuples pauvres: ceux que la durete du gouvernement a
rendus tels ; et ces gens-la font incapables de prefque au-
cune vertu, parce que leur pauvrete fait une partie de
leur fervitude : Jes autres ne font pauvres que parce qu'ils
ont dedaigne, ou parce qu'ils a'ont pas connu les corn-
mod ites

Sed. 2 • Germany and England. 287

life : and thus their poverty was a part
of their liberty.

We have feen, that the German no-
bility obtained a place in the councils
of their nation ; and that they retained
this prerogative in England : we have
feen, that the German druids arrogated
to themfelves a feat in thofe councils ;
and that the Saxon clergy were adorned
with this privilege : we have alfo feen,
that the commons in Germany aflem-
bled in a collective body, or by a repre-
fentative : And fhall we not conclude,
with an equal propriety, that the com-
mons in England exerted a legiflative
authority ?

Every free-man in Germany aflem-
bled in perfon at the councils of his na-
tion, or voted for the reprefentative of
his diftricT:. The fame conduct was ob-
ferved in England. The pofleffion of

inodites de la vie ; et ceux-ci peuvent faire de grandes
chofes, parce que cet pauvrete fait une partie de ]eur H-
berte." Vefprit des Loix, li<v. 20. cb. 3.

land

288 Of the great council in Part V.

land was the mark of freedom among
the Saxons ; and in thofe ftates of the
heptarchy where the people could appear
in a body, every individual who had
feized, or had been endowed with terri-
tory, had a title to attend its councils :
but in thofe which were more populous,
and where the individuals could not eafily
be collected, the holders of land gave
their votes for reprefentatives : and
from the time that the Saxon kingdoms
were united, the commons appeared ge-
nerally in the way of reprefentation.

In every inferior court, which had
been formed in Germany and England,
the free-men, or pofleflbrs of land in
the territory over which it prefided, af-
fembled as the fm 'tors there. Would we
every where perceive the marks of a
limited and free adminiftration in the
loweft eftablimments, and yet find them
to be wanting in that which was high-
eft, and moft important ? It is impof-
lible. The whole land-holders among
the Saxons were thefuitors of the coun-
cil of the nation. The boroughs, or

towns,

Sed . 3 . Germany and England. ,389

towns, forming corporations, and being
endowed with land, had a title to be pre-
fent by their deputies ; and the •wites
(5), or wife men, who are mentioned as
a part of the Anglo-Saxon parliament,
were \hzknights ofthejlnres^ and the bur~
geffes.

THESE arguments in favour of a re-
prefentation among the Saxons arife na-
turally from the reflections I had made.
To enumerate the different opinions
which have been formed concerning the
eftablifhment of our parliament, and to
examine the reafonings which have been
adduced to fupport them, belong not to
the prefent undertaking.

(5) There can be no impropriety in fuppifing, that
the term wites was applied to the reprefentanves of
counties and boroughs. A man whom the people could
intruft to make laws for them, might very well be called
a ot'//£, " a difcreet or wife man." It is obvious, at
leaft, that this term could not mean lawyers, or Judges, as
Dr. Brady imagines : fo law was not then the object of
a particular profeflion ; and judges had no more voice in
making laws than a: prefent. See Bill, polit dialogue 6.

u

29°

great council^ &c. PartV.

CONCLUSION.

f~\ N the whole, I pretend not to have
Vrr^ exhaufted the different fubjects I
have ventured to difcourfe of in this
treatife. If I have made it appear, that
the parts which compofe our conftitu-
tion arofe more immediately from the
forefts of Germany, I have anfwered
my intention. Thofe who have more
learning and capacity may penetrate
farther, and delineate, with a happier
pencil, the plan of our government.

THE

N D,

CORRECTIONS,

Page 33. line 3. from the bottom, delete
the word to,

Page 203. line 14. from the bottom, for
forthy, read forty.

Page 208. line 7. from the top, for fur*
nijhed th^m^ read funiifhed to them.

131

SB

1770

Stuart, Gilbert

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